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Full text of "Arkansas Code, Volume 22, 2011 Supplement"

Arkansas Code 

OF 1987 

Annotated 







2011 SUPPLEMENT 
VOLUME 22 

Place in pocket of bound volume 

Prepared by the Editorial Staff of the Publisher 

Under the Direction and Supervision of the 

ARKANSAS CODE REVISION COMMISSION 

Senator David Johnson, Chair 

Senator Sue Madison 

Representative John Vines 

Representative Darrin Williams 

Honorable Bettina E. Brownstein 

Honorable Don Schnipper 

Honorable David R. Matthews 

Honorable Stacy Leeds, Dean, University of Arkansas at 

Fayetteville, School of Law 

Honorable John DiPippa, Dean, University of Arkansas at 

Little Rock, School of Law 

Honorable Warren T. Readnour, Senior Assistant Attorney General 

Honorable Marty Garrity, Assistant Director for Legal Services of 

the Bureau of Legislative Research 

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BY 

The State of Arkansas 



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For information about this Supplement, see the 
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TITLE 23 

PUBLIC UTILITIES AND REGULATED 
INDUSTRIES 

(CHAPTERS 30-59 IN VOLUME 23A; CHAPTERS 60-73 IN 

VOLUME 23B; CHAPTERS 74-87 IN VOLUME 24A; 

CHAPTERS 88-115 IN VOLUME 24B) 

SUBTITLE 1. PUBLIC UTILITIES AND CARRIERS 

CHAPTER 

1. GENERAL PROVISIONS. 

2. REGULATORY COMMISSIONS. 

3. REGULATION OF UTILITIES AND CARRIERS GENERALLY. 

4. REGULATION OF RATES AND CHARGES GENERALLY. 

10. TRANSPORTATION OF PASSENGERS AND FREIGHT GENERALLY. 

12. OPERATION AND MAINTENANCE OF RAILROADS. 

13. MOTOR CARRIERS. 

14. AIR COMMERCE REGULATIONS. 

15. PIPELINE COMPANIES. 

16. MISCELLANEOUS PROVISIONS RELATING TO CARRIERS. 

17. TELEPHONE AND TELEGRAPH COMPANIES. 

18. LIGHT, HEAT, AND POWER UTILITIES. 

19. ELECTRIC CONSUMER CHOICE ACT OF 1999. [REPEALED.] 

SUBTITLE 1. PUBLIC UTILITIES AND CARRIERS 

CHAPTER 1 
GENERAL PROVISIONS 

SECTION. 

23-1-115. Citizens band radio equipment. 
23-1-101. Definitions. 

CASE NOTES 

Analysis public utility statutes; the Commission 

was vested with the power and jurisdic- 
In General. tion, and its duty was, to supervise and 

Jurisdiction. regulate every public utility denned in 

Public Utility. this section and to do all things, whether 

specifically designated or not, that were 
In General. necessary or expedient in the exercise of 

The Arkansas Legislature, in enacting such power and jurisdiction, or in the 
§ 23-2-304, set forth the powers of the discharge of its duty. Ark. Gas Consum- 
Arkansas Public Utility Commission, but ers, Inc. v. Ark. Pub. Serv. Comm'n, 80 
did not limit the Commission's jurisdic- Ark. App. 1, 91 S.W.3d 75 (2002), rev'd, 
tion to the powers expressly set out in the Ark. Gas Consumers, Inc. v. Ark. Pub. 



23-1-115 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



Serv. Comm'n, 
109 (2003). 



354 Ark. 37, 118 S.W.3d 



Jurisdiction. 

Supreme Court of Arkansas granted a 
gas utility company's writ of prohibition 
from a county court's denial of the compa- 
ny's motion to dismiss finding that the 
Arkansas Public Service Commission 
(APSC) had sole and exclusive jurisdiction 
under § 23-4-20 1(a)(1) over Arkansas 
residential gas customers' claims that 
they were being charged too much for 
natural gas because of the company's al- 
leged fraudulent conduct. Centerpoint En- 
ergy, Inc. v. Miller County Circuit Court, 
370 Ark. 190, 258 S.W.3d 336 (2007). 



Public Utility. 

In litigation between landowners and 
the city over the scope of a utility ease- 
ment and rights of ingress and egress to 
service a telecommunications facility, it 
was irrelevant whether cellular communi- 
cations businesses were included within 
the term "public utility" as defined by this 
section since this definition related only to 
ratemaking by the Arkansas Public Ser- 
vice Commission. Bishop v. City of Fay- 
etteville, 81 Ark. App. 1, 97 S.W.3d 913 
(2003). 



23-1-115. Citizens band radio equipment. 

(a)(1) Citizens band radio equipment shall not be used unless that 
equipment is certified by the Federal Communications Commission. 

(2) Citizens band radio equipment shall not be operated on a fre- 
quency between twenty-four megahertz (24 MHz) and thirty-five mega- 
hertz (35 MHz) without authorization from the commission. 

(b) Nothing in this section shall be construed to affect any radio 
station that is licensed by the commission under 47 U.S.C. § 301. 

(c)(1) A first violation of this section is a violation punishable by a 
fine of one hundred dollars ($100). 

(2) A second or subsequent violation of this section is a violation 
punishable by a fine not to exceed one thousand dollars ($1,000). 



History. Acts 2001, 
2005, No. 1994, § 145. 



No. 1432, § 1; 



CHAPTER 2 
REGULATORY COMMISSIONS 



subchapter. 
1. Arkansas Public Service Commission. 

3. General Regulatory Authority of Commissions. 

4. Procedure Before Commissions. 

Subchapter 1 — Arkansas Public Service Commission 



SECTION. 

23-2-112. 



Rural and Community Liaison 



— General 
bilities. 



job responsi- 



A.C.R.C. Notes. Acts 2011, No. 2, § 4, 
provides: "SALARY LEVELS. The 
Speaker of the House of Representatives 
and the Chief of Staff or his designee 



shall, during the month of June, each 
fiscal year, meet and determine the actual 
salaries to be paid each employee begin- 
ning the following July 1. Such salaries of 



REGULATORY COMMISSIONS 



23-2-112 



the employees will be based upon an 
evaluation of the performance of the Chief 
of Staff by the Speaker of the House of 
Representatives and upon an evaluation 
of the performance of the other employees 
by the Chief of Staff or his designee." 

Effective Dates. Acts 2003, No 1321, 
§ 19: July 1, 2003. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly, that the Constitution 
of the State of Arkansas prohibits the 
appropriation of funds for more than a two 
(2) year period; that the effectiveness of 
this Act on July 1, 2003 is essential to the 



operation of the agency for which the 
appropriations in this Act are provided, 
and that in the event of an extension of 
the Regular Session, the delay in the 
effective date of this Act beyond July 1, 
2003 could work irreparable harm upon 
the proper administration and provision 
of essential governmental programs. 
Therefore, an emergency is hereby de- 
clared to exist and this Act being neces- 
sary for the immediate preservation of the 
public peace, health and safety shall be in 
full force and effect from and after July 1, 
2003." 



23-2-103. Offices — Place of hearings and investigations. 

CASE NOTES 



Public Comments. 

Although subsection (b) of this section 
required the Arkansas Public Service 
Commission to consider public hearing 
comments before issuing a decision about 
a rate increase, its failure to do so was a 
harmless error when the Commission ad- 
dressed the comments in a later order and 
there was no argument that no substan- 
tial evidence under § 23-2-423(c)(3) and 
(4) supported the increase, and therefore, 



prejudice to the residential ratepayers 
was not shown. Although the wording of 
subsection (b) of this section does not state 
specifically that the Commission must 
have the transcript of the public com- 
ments before it issues its decision, that is 
clearly the intent of the statute. Consum- 
ers Utils. Rate Advocacy Div. v. Ark. Pub. 
Serv. Comm'n, 99 Ark. App. 228, 258 
S.W.3d 758 (2007). 



23-2-112. Rural and Community Liaison — General job respon- 
sibilities. 

(a) The Rural and Community Liaison will serve as a two-way 
communication link between the Arkansas Public Service Commission 
and utility customers in Arkansas, particularly those in rural areas. 

(b)(1) The liaison is responsible for: 

(A) Providing information to communities and rural utility cus- 
tomers concerning utility matters within the jurisdiction of the 
commission; and 

(B) Identifying questions and concerns that rural utility customers 
may have concerning utility issues and relaying those concerns to the 
members of the commission and to the commission staff. 

(2) In the performance of these duties, the liaison will work with 
stakeholders in rural areas and communities, including legislators, 
civic and community leaders, customers and customer groups, and 
rural utility personnel. 



History. Acts 2003, No. 1321, § 14. 



23-2-301 PUBLIC UTILITIES AND REGULATED INDUSTRIES 4 

Subchapter 3 — General Regulatory Authority of Commissions 

SECTION. SECTION. 

23-2-304. Certain powers of commission 23-2-315. Reports by commission, 
enumerated. 



Effective Dates. Acts 2003, No. 204, 
§ 19: Feb. 21, 2003. Emergency clause 
provided: "It is found and determined by 
the Eighty-fourth General Assembly that 
certain provisions of the Electric Con- 
sumer Choice Act of 1999, as amended by 
Act 324 of 2001, for the implementation of 
retail electric competition may take effect 
prior to ninety-one (91) days after the 
adjournment of this session; that this act 
is intended to prevent such implementa- 
tion; and that unless this emergency 
clause is adopted, this act may not go into 
effect until further steps have been taken 
toward retail electric competition, which 
the General Assembly has found not to be 
in the public interest. The General Assem- 
bly further finds that uncertainty sur- 
rounding the implementation of the Elec- 
tric Consumer Choice Act during the 
ninety (90) days following the adjourn- 
ment of this session and uncertainty re- 
garding the recovery of reasonable gen- 
eration costs, could discourage electric 
utilities from acquiring additional genera- 
tion resources; that retail electric custom- 
ers will require such resources; and that 
this act, in Section 11 and elsewhere, 
provides procedures to facilitate the ac- 
quisition of these resources. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 



the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 
Acts 2009, No. 246, § 2, Feb. 26, 2009. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that the April 
date for the submission of the Arkansas 
Public Service Commission's annual re- 
port to the Governor precludes the com- 
mission from including full and complete 
public utility data for the preceding calen- 
dar year; that changing the submission 
date of the annual report from April to 
June will allow the commission to include 
in its annual report full and complete 
public utility data for the preceding calen- 
dar year; that this act is immediately 
necessary because the commission's next 
annual report is required to be submitted 
in the month of April 2009. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 



23-2-301. Powers and jurisdiction of commission generally. 

CASE NOTES 



Scope of Authority. 

Surcharge statutes tie surcharges to 
existing facility costs and costs directly 
related to legislative or regulatory re- 
quirements, and there is no authority 
granted to the Arkansas Public Service 



Commission for the implementation of so- 
cial programs; moreover; the same holds 
true of sliding-scale ratemaking where the 
statutory language of this section and 
Arkansas case law refer to costs associ- 
ated with gas production and service to 



5 REGULATORY COMMISSIONS 23-2-304 

the ratepayers, not low-income assistance Co., 76 Ark. App. 201, 61 S.W.3d 193 

programs. Ark. Gas Consumers, Inc. v. (2001); Centerpoint Energy, Inc. v. Miller 

Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 County Circuit Court, 370 Ark. 190, 258 

S.W.3d 109 (2003). S.W.3d 336 (2007). 
Cited: Brandon v. Arkansas W. Gas 

23-2-304. Certain powers of commission enumerated. 

(a) Upon complaint or upon its own motion and upon reasonable 
notice and after a hearing, the Arkansas Public Service Commission 
shall have the power to: 

(1) Find and fix just, reasonable, and sufficient rates to be thereafter 
observed, enforced, and demanded by any public utility; 

(2) Determine the reasonable, safe, adequate, and sufficient service 
to be observed, furnished, enforced, or employed by any public utility 
and to fix this service by its order, rule, or regulation; 

(3) Ascertain and fix adequate and reasonable standards, classifica- 
tions, regulations, practices, and services to be furnished, imposed, 
observed, and followed by any or all public utilities; 

(4) Ascertain and fix adequate and reasonable standards for the 
measurement of quantity, quality, pressure, initial voltage, or other 
conditions pertaining to the supply of all products, commodities, or 
services furnished or rendered by any and all public utilities; 

(5) Prescribe reasonable regulations for the examination and testing 
of the production, commodity, or service, and, for the measurement 
thereof, establish or approve reasonable rules, regulations, specifica- 
tions, and standards to secure the accuracy of all meters or appliances 
for measurement; 

(6) Provide for the examination and testing of any and all appliances 
used for the measurement of any product, commodity, or service of any 
public utility; 

(7)(A) Ascertain and fix the value of the whole or any part of the 
property of any public utility insofar as this value is material to the 
exercise of the jurisdiction of the commission. 

(B) The commission may make revaluations of the whole or any 
part of the property from time to time and may ascertain the value of 
any new construction, extension, and addition to or retirement from 
the property of every public utility; 

(8)(A) Require any or all public utilities to carry a proper and 
adequate depreciation account in accordance with such rules, regu- 
lations, and forms of account as the commission may prescribe. 

(B) The commission may ascertain, determine, and by order fix the 
proper and adequate rates of depreciation of the several classes of 
property of each public utility. 

(C) Each public utility shall conform its depreciation accounts to 
the rates so ascertained, determined, and fixed by the commission; 
(9) Assure that retail customers should have access to safe, reliable, 

and affordable electricity, including protection against service discon- 
nections in extreme weather or in cases of medical emergency or 
nonpayment for unrelated services; and 



23-2-304 PUBLIC UTILITIES AND REGULATED INDUSTRIES 6 

(10)(A) Assure that electric utility bills, usage, and payment records 
should be treated as confidential unless the retail customer consents 
to their release or the information is provided only in the aggregate. 
(B) Notwithstanding subdivision (a)(10)(A) of this section, release 
of such information may be made pursuant to subpoena, court order, 
or other applicable statute, rule, or regulation. 

(b) Because of competitive and technological changes relating to the 
services provided by telephone public utilities, the commission, upon 
petition by the telephone public utility, after notice and hearing and a 
finding that it is in the public interest, may deviate from the rate/base 
rate of return method of regulation in establishing rates and charges for 
services provided by the telephone public utility. 

(c) In the discharge of its duties under this act, the commission may 
cooperate with regulatory commissions of other states and of the United 
States. It may also hold joint hearings and make joint investigations 
with such commissions. 



History. Acts 1935, No. 324, §§ 8, 19; 
Pope's Dig., §§ 2071, 2082; A.S.A. 1947, 
§§ 73-202, 73-218; Acts 1993, No. 238, 
§ 1; 2003, No. 204, § 6. 

A.C.R.C. Notes. Acts 2003, No. 204, 



§ 16, provided: "Nothing in this act shall 
alter or diminish the Arkansas Public Ser- 
vice Commission's authority under other- 
wise applicable law." 



CASE NOTES 



Analysis 

In General. 
Jurisdiction. 
Scope of Authority. 

In General. 

The amendment of this section by Acts 
2003, No. 204, is viewed by the court as 
recognition of the fact that no such power 
was previously vested in the Arkansas 
Public Service Commission for the provi- 
sion of electricity in inclement weather, 
and, of course, no such power presently 
exists relating to natural gas. Ark. Gas 
Consumers, Inc. v. Ark. Pub. Serv. 
Comm'n, 354 Ark. 37, 118 S.W.3d 109 
(2003). 

Jurisdiction. 

The Arkansas Legislature, in enacting 
this section, set forth the powers of the 
Arkansas Public Utility Commission, but 
did not limit the Commission's jurisdic- 
tion to the powers expressly set out in the 
public utility statutes; the Commission 
was vested with the power and jurisdic- 
tion, and its duty was, to supervise and 
regulate every public utility denned in 
§ 23-1-101 and to do all things, whether 



specifically designated or not, that were 
necessary or expedient in the exercise of 
such power and jurisdiction, or in the 
discharge of its duty. Ark. Gas Consum- 
ers, Inc. v. Ark. Pub. Serv. Comm'n, 80 
Ark. App. 1, 91 S.W.3d 75 (2002), rev'd, 
Ark. Gas Consumers, Inc. v. Ark. Pub. 
Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 
109 (2003). 

Scope of Authority. 

Because subdivisions (a)(1) and (2) of 
this section allowed the Arkansas Public 
Utility Commission to exercise its legisla- 
tively delegated authority to regulate pub- 
lic utilities, fix reasonable and sufficient 
rates, and determine the reasonable, safe, 
adequate, and sufficient service to be fur- 
nished by the natural gas utilities, its 
emergency policy, implemented to assist 
low-income families obtain reconnection, 
and the temporary interim surcharge as- 
sociated with it, were not outside the 
scope of the Commission's authority. Ark. 
Gas Consumers, Inc. v. Ark. Pub. Serv. 
Comm'n, 80 Ark. App. 1, 91 S.W.3d 75 
(2002), rev'd, Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 
S.W.3d 109 (2003). 

Surcharge statutes tie surcharges to 



REGULATORY COMMISSIONS 



23-2-403 



existing facility costs and costs directly 
related to legislative or regulatory re- 
quirements, and there is no authority 
granted to the Arkansas Public Service 
Commission for the implementation of so- 
cial programs; moreover; the same holds 
true of sliding-scale ratemaking where the 
statutory language of this section and 
Arkansas case law refer to costs associ- 



ated with gas production and service to 
the ratepayers, not low-income assistance 
programs. Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 
S.W.3d 109 (2003). 

Cited: Alltel Ark., Inc. v. Ark. Pub. 
Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 
889 (2002). 



23-2-315. Reports by commission. 

The Arkansas Public Service Commission shall make and submit to 
the Governor during the month of June of each year a report containing 
a full and complete account of its transactions and proceedings for the 
preceding calendar year, together with such other facts, suggestions, 
and recommendations as it may deem of value to the people of the state. 

History. Acts 1935, No. 324, § 14; Amendments. The 2009 amendment 

Pope's Dig., § 2077; A.S.A. 1947, § 73- substituted "Arkansas Public Service 

141; Acts 1989, No. 594, § 1; 2009, No. Commission" for "commission" and "June" 

246, § 1. for "April." 

Subchapter 4 — Procedure Before Commissions 

SECTION. SECTION. 

23-2-405. Service of process, notices, com- 23-2-409. Subpoenas — Failure to comply 
plaints, etc. — Penalty. 

23-2-403. Evidence and pleading. 

CASE NOTES 



Analysis 

Cross-Examination of Witnesses. 
Judicial Review. 

Cross-Examination of Witnesses. 

Although a utility argued that the Pub- 
lic Service Commission violated constitu- 
tional guarantees of due process by limit- 
ing the cross-examination of witnesses, 
the utility waived this argument on ap- 
peal by not making a timely objection 
below. Entergy Arkansas, Inc. v. Ark. Pub. 
Serv. Comm'n, 104 Ark. App. 147, 289 
S.W3d 513 (2008), review denied, Entergy 
Ark., Inc. v. Ark. PSC, — Ark. — , — 
S.W.3d — , 2009 Ark. LEXIS 453 (Apr. 23, 
2009). 



Judicial Review. 

Public Service Commission (PSC) did 
not act err in declaring that an electric 
utility's recovery of storm restoration 
costs in the amount of $47 million would 
constitute improper, retroactive ratemak- 
ing, nor did it err in using a hypothetical 
debt-to-equity (D/E) ratio of 52/48 to es- 
tablish the cost of capital instead of the 
utility's 44/56 D/E ratio; however, in cal- 
culating the dividends-payable balance, 
the PSC erred in using the utility's parent 
company's lag time. Entergy Arkansas, 
Inc. v. Ark. Pub. Serv. Comm'n, 104 Ark. 
App. 147, 289 S.W3d 513 (2008), review 
denied, Entergy Ark., Inc. v. Ark. PSC, — 
Ark. — — S.W3d — , 2009 Ark. LEXIS 
453 (Apr. 23, 2009). 



23-2-405 PUBLIC UTILITIES AND REGULATED INDUSTRIES 8 

23-2-405. Service of process, notices, complaints, etc. 

(a) All process issued by the commission shall extend to all parts of 
the state, and any such process, together with the service of all notices 
issued by the commission, as well as copies of complaints, rules, orders, 
and regulations of the commission, may be served by any person 
authorized to serve process issued out of courts of law, or by mail, as the 
commission may direct. 

(b) In instances in which service is had by mail, a duplicate of the 
instrument served shall be enclosed, upon which duplicate the person 
served shall endorse the date of his or her receipt of the original and 
promptly return the duplicate to the commission. 

(c) Any person who fails, neglects, or refuses to promptly return the 
receipt and duplicate shall be guilty of a Class A misdemeanor. 

History. Acts 1935, No. 324, § 29; 
Pope's Dig., § 2092; A.S.A. 1947, § 73- 
228; Acts 2005, No. 1994, § 203. 

23-2-408. Subpoenas duces tecum. 

CASE NOTES 

Jurisdiction. under § 23-4-201(a)(l) over Arkansas 
Supreme Court of Arkansas granted a residential gas customers' claims that 
gas utility company's writ of prohibition they were being charged too much for 
from a county court's denial of the compa- natural gas because of the company's al- 
ny's motion to dismiss finding that the leged fraudulent conduct. Centerpoint En- 
Arkansas Public Service Commission ergy, Inc. v. Miller County Circuit Court, 
(APSC) had sole and exclusive jurisdiction 370 Ark. 190, 258 S.W.3d 336 (2007). 

23-2-409. Subpoenas — Failure to comply — Penalty. 

The failure or refusal of any witness to appear or to produce any 
books, papers, or documents required by the Arkansas Public Service 
Commission or the Arkansas Transportation Commission [abolished] 
and to submit them to the inspection of the commission or the refusal 
to answer any questions propounded by the commission shall constitute 
a violation punishable by a fine of not less than fifty dollars ($50.00) nor 
more than five hundred dollars ($500). 

History. Acts 1945, No. 40, § 2; A.S.A. 
1947, § 73-130; Acts 2005, No. 1994, 
§ 146. 



9 



REGULATORY COMMISSIONS 



23-2-422 



23-2-421. Findings and orders of Arkansas Public Service Com- 
mission. 

CASE NOTES 



Findings of Fact. 

It was not required that the Public 
Utility Commission make findings of fact 
on all items of evidence or issues nor 
answer each and every contention raised 
by the parties; thus, where the evidence 
that supported order 2, which was issued 
after public notice, comment, and a hear- 
ing, equally supported orders 3 and 4, 
which simply corrected and clarified order 
2, additional findings were not necessary. 
Ark. Gas Consumers, Inc. v. Ark. Pub. 
Serv. Comm'n, 80 Ark. App. 1, 91 S.W.3d 
75 (2002), rev'd, Ark. Gas Consumers, Inc. 
v. Ark. Pub. Serv. Comm'n, 354 Ark. 37, 
118 S.W.3d 109 (2003). 



In a proceeding to increase nongas 
rates, whether the month of April should 
have been included in the winter (peak) 
usage period that was relied on by the 
Arkansas Public Service Commission to 
support the 68.5% demand allocation was 
a finding that should have been made by 
the Commission and because the decision 
was insufficient for the court to make an 
adequate meaningful review as required 
by subsection (a) of this section, the action 
was remanded. The issue was properly 
before the Commission. Consumers Utils. 
Rate Advocacy Div. v. Ark. Pub. Serv. 
Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 
(2007). 



23-2-422. Arkansas Public Service Commission orders 
hearings. 



Re 



CASE NOTES 



Analysis 

Due Process. 
Rehearings. 

Due Process. 

In an action to increase nongas rates, 
the brevity of time in which the Arkansas 
Public Service Commission approved a 
gas company's tariffs did not violate a 
consumer group's due process rights be- 
cause the group was not deprived of the 
opportunity to petition for rehearing un- 
der subsection (a) of this section. The 
group did not identify any property right 
before the Commission or the court of 
which it had been deprived, and it did not 
show any prejudice. Consumers Utils. 
Rate Advocacy Div v. Ark. Pub. Serv. 



Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 

(2007). 

Rehearings. 

Notice of appeal may be filed within 
thirty days of one of two dates: (1) the date 
on which the Arkansas Public Service 
Commission (PSC) enters an order upon 
the application for rehearing, or (2) the 
date on which the application is deemed 
denied, and Ark. R. App. P. Civ. 4 does not 
apply; therefore, a motion to dismiss an 
appeal as untimely was denied because it 
was filed within 30 days of the PSC deny- 
ing rehearing, even though the deemed 
denied date had already passed when the 
PSC decided to reconsider the case. Com- 
mercial Energy Users Group v. Arkansas 
Pub. Serv. Comm'n, 369 Ark. App. 13, 250 
S.W.3d 225 (2007). 



23-2-423 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



10 



23-2-423. Arkansas Public Service Commission orders — Judi- 
cial review — Procedure. 

CASE NOTES 



Analysis 

Notice of Appeal. 
Scope of Review. 
— Substantial Evidence. 
Waiver of Objections. 

Notice of Appeal. 

Notice of appeal may be filed within 
thirty days of one of two dates: (1) the date 
on which the Arkansas Public Service 
Commission (PSC) enters an order upon 
the application for rehearing, or (2) the 
date on which the application is deemed 
denied, and Ark. R. App. P. Civ. 4 does not 
apply; therefore, a motion to dismiss an 
appeal as untimely was denied because it 
was filed within 30 days of the PSC deny- 
ing rehearing, even though the deemed 
denied date had already passed when the 
PSC decided to reconsider the case. Com- 
mercial Energy Users Group v. Arkansas 
Pub. Serv. Comm'n, 369 Ark. App. 13, 250 
S.W.3d 225 (2007). 

Scope of Review. 

Although § 23-2- 103(b) required the Ar- 
kansas Public Service Commission to con- 
sider public hearing comments before is- 
suing a decision about a rate increase, its 
failure to do so was a harmless error when 
the Commission addressed the comments 
in a later order and there was no argu- 
ment that no substantial evidence under 
subdivisions (c)(3) and (4) of this section 
supported the increase, and therefore, 
prejudice to the residential ratepayers 
was not shown. Although the wording of 
§ 23-2- 103(b) does not state specifically 
that the Commission must have the tran- 
script of the public comments before it 
issues its decision, that is clearly the in- 
tent of the statute. Consumers Utils. Rate 
Advocacy Div. v. Ark. Pub. Serv. Comm'n, 
99 Ark. App. 228, 258 S.W.3d 758 (2007). 

In an action to increase nongas rates, 
the Consumer Utilities Rate Advocacy Di- 
vision of the Attorney General's Office 
obtained some testimony that the alloca- 
tion of distribution mains' cost could have 
been lowered if relevant data was avail- 
able, but that evidence was not sufficient 



to convince the court that the Arkansas 
Public Service Commission's adoption of 
its staffs customer allocation was not sup- 
ported by substantial evidence as re- 
quired by subdivisions (c)(3) and (4) of this 
section. Consumers Utils. Rate Advocacy 
Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. 
App. 228, 258 S.W.3d 758 (2007). 

In an action to increase nongas rates, 
the Arkansas Public Service Commission 
found that a gas company met its burden 
of producing sufficient evidence of real 
potential harm for abuse of the company's 
system and a consumer group did not 
demonstrate that the potential for abuse 
did not exist or offer evidence that the 
proposal was unreasonable. Therefore, 
under subsection (c) of this section, sub- 
stantial evidence supported the Commis- 
sion's decision to allow the company to 
lower the imbalance percentages. Con- 
sumers Utils. Rate Advocacy Div. v. Ark. 
Pub. Serv. Comm'n, 99 Ark. App. 228, 258 
S.W.3d 758 (2007). 

Public Service Commission (PSC) did 
not act err in declaring that an electric 
utility's recovery of storm restoration 
costs in the amount of $47 million would 
constitute improper, retroactive ratemak- 
ing, nor did it err in using a hypothetical 
debt-to-equity (D/E) ratio of 52/48 to es- 
tablish the cost of capital instead of the 
utility's 44/56 D/E ratio; however, in cal- 
culating the dividends-payable balance, 
the PSC erred in using the utility's parent 
company's lag time. Entergy Arkansas, 
Inc. v. Ark. Pub. Serv. Comm'n, 104 Ark. 
App. 147, 289 S.W.3d 513 (2008), review 
denied, Entergy Ark., Inc. v. Ark. PSC, — 
Ark. — — S.W.3d — , 2009 Ark. LEXIS 
453 (Apr. 23, 2009). 

— Substantial Evidence. 

Though subdivision (c)(4) of this section 
limited judicial review of appeals from the 
Arkansas Public Service Commission, be- 
cause the order of the Commission was 
supported by substantial evidence and 
was not unjust, arbitrary, unreasonable, 
unlawful, or discriminatory, the appeals 
court affirmed the Commission's action. 
Ark. Gas Consumers, Inc. v. Ark. Pub. 



11 



REGULATION GENERALLY 



23-2-424 



Serv. Comm'n, 80 Ark. App. 1, 91 S.W.3d 
75 (2002), rev'd, Ark. Gas Consumers, Inc. 
v. Ark. Pub. Serv. Comm'n, 354 Ark. 37, 
118 S.W.3d 109 (2003). 

Waiver of Objections. 

Although a utility argued that the Pub- 
lic Service Commission violated constitu- 
tional guarantees of due process by limit- 
ing the cross-examination of witnesses, 
the utility waived this argument on ap- 
peal by not making a timely objection 
below. Entergy Arkansas, Inc. v. Ark. Pub. 



Serv. Comm'n, 104 Ark. App. 147, 289 
S.W.3d 513 (2008), review denied, Entergy 
Ark., Inc. v. Ark. PSC, — Ark. — , — 
S.W.3d — , 2009 Ark. LEXIS 453 (Apr. 23, 
2009). 

Cited: Alltel Ark., Inc. v. Ark. Pub. 
Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 
889 (2002); Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 
S.W.3d 109 (2003); Hempstead County 
Hunting Club, Inc. v. Ark. PSC, 2010 Ark. 
221, — S.W.3d — (2010). 



23-2-424. Arkansas Public Service Commission orders — Re- 
hearing or judicial review — Effect on order, stocks, 
etc. 

CASE NOTES 



Stay Pending Review. 

Notice of appeal may be filed within 
thirty days of one of two dates: (1) the date 
on which the Arkansas Public Service 
Commission (PSC) enters an order upon 
the application for rehearing, or (2) the 
date on which the application is deemed 
denied, and Ark. R. App. P. Civ. 4 does not 
apply; therefore, a motion to dismiss an 



appeal as untimely was denied because it 
was filed within 30 days of the PSC deny- 
ing rehearing, even though the deemed 
denied date had already passed when the 
PSC decided to reconsider the case. Com- 
mercial Energy Users Group v. Arkansas 
Pub. Serv. Comm'n, 369 Ark. App. 13, 250 
S.W.3d 225 (2007). 



CHAPTER 3 

REGULATION OF UTILITIES AND CARRIERS 
GENERALLY 



subchapter 

1. General Provisions. 

2. Certificates of Convenience and Necessity. 

3. Merger or Acquisition of Control of Domestic Public Utilities. 

5. Navigable Water Crossings. 

6. Gas Utilities — Extension Projects. 

Subchapter 1 — General Provisions 



SECTION. 

23-3-102. Consolidations, stock pur- 
chases in another utility, 



or rentals 
property. 



of additional 



Effective Dates. Acts 2003, No. 204, 
§ 19: Feb. 21, 2003. Emergency clause 
provided: "It is found and determined by 
the Eighty-fourth General Assembly that 
certain provisions of the Electric Con- 



sumer Choice Act of 1999, as amended by 
Act 324 of 2001, for the implementation of 
retail electric competition may take effect 
prior to ninety-one (91) days after the 
adjournment of this session; that this act 



23-3-101 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



12 



is intended to prevent such implementa- 
tion; and that unless this emergency 
clause is adopted, this act may not go into 
effect until further steps have been taken 
toward retail electric competition, which 
the General Assembly has found not to be 
in the public interest. The General Assem- 
bly further finds that uncertainty sur- 
rounding the implementation of the Elec- 
tric Consumer Choice Act during the 
ninety (90) days following the adjourn- 
ment of this session and uncertainty re- 
garding the recovery of reasonable gen- 
eration costs, could discourage electric 
utilities from acquiring additional genera- 
tion resources; that retail electric custom- 



ers will require such resources; and that 
this act, in Section 11 and elsewhere, 
provides procedures to facilitate the ac- 
quisition of these resources. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 



23-3-101. Organization or reorganization. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-3-102. Consolidations, stock purchases in another utility, or 
rentals of additional property. 

(a) With the consent and approval of the Arkansas Public Service 
Commission, but not otherwise: 

(1) Any two (2) or more public utilities may consolidate with each 
other; 

(2) Any public utility may acquire the stock or any part thereof of any 
other public utility; and 

(3) Any public utility may sell, acquire, lease, or rent any public 
utility plant or property constituting an operating unit or system. 

(b)(1) Application for the approval and consent of the commission 
shall be made by the interested public utility and shall contain a concise 
statement of the proposed action, the reasons therefor, and such other 
information as may be required by the commission. 

(2) Upon the filing of an application, the commission shall investi- 
gate it, with or without public hearing, and in case of a public hearing, 
upon such notice as the commission may require. If it finds that the 
proposed action is consistent with the public interest, it shall give its 
consent and approval in writing. 



13 REGULATION GENERALLY 23-3-109 

(3) In reaching its determination, the commission shall take into 
consideration the reasonable value of the property, plant, equipment, or 
securities of the utility to be acquired or merged. 

(c) No public utility shall sell, lease, rent, or otherwise transfer, in 
any manner, control of electric transmission facilities in this state 
without the approval of the commission, provided that the approval is 
required only to the extent the transaction is not subject to the 
exclusive jurisdiction of the Federal Energy Regulatory Commission or 
any other federal agency. 

(d) Any transaction required by this section to be submitted to the 
commission for its consent and approval shall be void unless the 
commission shall give its consent and approval thereto in writing. 

(e)(1) All transactions among or between a regulated electric public 
utility and any of its divisions, components, or affiliates that are not 
regulated by the commission shall be subject to such rules as may be 
promulgated by the commission so that: 

(A) All such transactions that involve regulated services shall be 
subject to the rates, terms, and conditions specified in tariffs ap- 
proved by the commission; and 

(B) An electric utility shall not use any revenue from any regulated 
asset, operation, or service to subsidize the provision of any unregu- 
lated electric service or any other unregulated activity. 

(2) However, the provisions of this subsection shall not apply to any 
transactions involving an electric cooperative formed under the Electric 
Cooperative Corporation Act, § 23-18-301 et seq., in which: 

(A) The membership of such a cooperative approves the transac- 
tion; and 

(B) In the case of subdivision (e)(1)(B) of this section, the commis- 
sion has not disallowed the transaction within sixty (60) days after 
the filing of a notice with the commission in writing of the proposed 
transaction by the cooperative. 

History. Acts 1935, No. 324, § 57; § 16, provided: "Nothing in this act shall 

Pope's Dig., § 2117; A.S.A. 1947, § 73- alter or diminish the Arkansas Public Ser- 

253; Acts 2003, No. 204, § 7. vice Commission's authority under other- 

A.C.R.C. Notes. Acts 2003, No. 204, wise applicable law." 

23-3-108. Domestication of foreign railroad, pipeline, or electric 
light and power corporations. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Property Law, 24 U. Ark. Little 
Legislation, 2001 Arkansas General As- Rock L. Rev. 549. 

23-3-109. Annual statements of gross earnings. 

Publishers Notes. The Arkansas by the Transportation Regulatory Board 
Transportation Commission, referred to in and the Transportation Safety Agency 
this section, was abolished and replaced pursuant to Acts 1987, No. 572. However, 



23-3-110 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



14 



Acts 1989 (1st Ex. Sess.), No. 67, § 23 and 
Acts 1989 (1st Ex. Sess.), No. 153, §§ 2, 3, 
abolished the board and the agency and 
transferred their powers, functions, and 
duties to the State Highway Commission 
and the Arkansas State Highway and 

23-3-110. Annual fees generally. 



Transportation Department, respectively. 
See Publisher's Notes to Chapter 2, Sub- 
chapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23 and 
Acts 1989 (1st Ex. Sess.), No. 153, §§ 2, 3, 
abolished the board and the agency and 



transferred their powers, functions, and 
duties to the State Highway Commission 
and the Arkansas State Highway and 
Transportation Department, respectively. 
See Publisher's Notes to Chapter 2, Sub- 
chapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-3-113. Adequate service, facilities, etc., to be provided. 

CASE NOTES 



Particular Circumstances. 

District court properly granted sum- 
mary judgment to a power company in an 
action resulting from the death of two men 
who were electrocuted when an aluminum 
tent pole came in contact with a power 



line because the evidence did not show 
that the company knew or should have 
known about the risk of an accident like 
the one which killed the men. Koch v. 
Southwestern Elec. Power Co., 544 F.3d 
906 (8th Cir. 2008). 



23-3-114. Unreasonable preferences prohibited. 

CASE NOTES 



Rate Differences. 

In accord with first paragraph in bound 
volume. Bryant v. Ark Pub. Serv. Comm'n, 
50 Ark. App. 213, 907 S.W.2d 140 (1995). 

In light of the undisputed public health 
and safety emergency that prompted the 
Arkansas Public Service Commission 
implementation of an emergency policy to 
assist low-income families obtain recon- 
nection of their utilities, the policy's tem- 
porary advantage to a class of low-income 
customers was reasonable under the cir- 
cumstances. Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 80 Ark. App. 1, 



91 S.W.3d 75 (2002), rev'd, Ark. Gas Con- 
sumers, Inc. v. Ark. Pub. Serv. Comm'n, 
354 Ark. 37, 118 S.W.3d 109 (2003). 

Although the Attorney general's office 
argued that Arkansas Public Service 
Commission's approval of an agreement to 
a gas company's rate hike was unreason- 
able and discriminatory, substantial evi- 
dence, including witness testimony, sup- 
ported the Commission's decision to 
approve the agreement. Consumer Utils. 
Rate Advocacy Div. v. Ark. Pub. Serv. 
Comm'n, 86 Ark. App. 254, 184 S.W.3d 36 
(2004). 



15 REGULATION GENERALLY 23-3-119 

23-3-118. Rates, charges, or service — Investigations. 

CASE NOTES 

Cited: Brandon v. Arkansas W. Gas 
Co., 76 Ark. App. 201, 61 S.W.3d 193 
(2001). 



23-3-119. Complaints. 



CASE NOTES 



Analysis 

Jurisdiction. 
Review. 

Jurisdiction. 

In customer's class action suit against a 
public service commission and several gas 
utilities challenging surcharges she paid 
as a result of an illegal policy imple- 
mented by the commission regarding low- 
income assistance, the trial court properly 
dismissed customer's claims as the relief 
she was seeking was a refund, which was 
within the jurisdiction of the commission 
to resolve under subsection (d) of this 
section; contrary to customer's assertion, 
the surcharges were not a tax but a 
mechanism by which the utilities could 
recover some of the bad debt incurred as a 
result of the implementation of the policy 
in question. Austin v. Centerpoint Energy 
Arkla, 365 Ark. 138, 226 S.W.3d 814 
(2006). 

Supreme Court of Arkansas granted a 
gas utility company's writ of prohibition 
from a county court's denial of the compa- 
ny's motion to dismiss finding that the 
Arkansas Public Service Commission 
(APSC) had sole and exclusive jurisdiction 
under § 23-4-201(a)(l) over Arkansas 
residential gas customers' claims that 
they were being charged too much for 
natural gas because of the company's al- 
leged fraudulent conduct. Centerpoint En- 
ergy, Inc. v. Miller County Circuit Court, 
370 Ark. 190, 258 S.W.3d 336 (2007). 

Because the circuit court's refusal to 
dismiss the representative of the Arkan- 
sas consumers was not in compliance with 
the court's prior decision ruling, which 
determined that the Arkansas Public Ser- 
vice Commission had sole and exclusive 
jurisdiction over the claims as they re- 



lated to the Arkansas customers, the court 
granted a writ of mandamus and directed 
the circuit court to dismiss the represen- 
tative of the Arkansas consumers; the 
jurisdiction of the Arkansas Public Service 
Commission in rate disputes was primary 
and had to be exhausted before a court of 
law or equity could assume jurisdiction. 
Centerpoint Energy, Inc. v. Miller County 
Circuit Court, 372 Ark. 343, 276 S.W.3d 
231 (2008). 

When an electric cooperative's custom- 
ers alleged the utility failed to refund 
patronage capital to the customers, the 
customers' claims were properly dis- 
missed due to the customers' failure to 
seek relief from the Arkansas Public Ser- 
vice Commission (APSC) because (1) it 
was alleged that the cooperative violated 
a duty to pay capital credits "on a reason- 
able and systematic basis," (2) the main 
relief sought was a refund of those credits, 
(3) the APSC had primary jurisdiction 
over claims that the cooperative violated 
§ 23-18-327 and was authorized by sub- 
section (d) of this section to order appro- 
priate prospective relief, and (4) the cus- 
tomers' claims were not private damage 
claims based on tort, contract, or property 
law. Capps v. Carroll Elec. Coop. Corp., 
2011 Ark. 48, — S.W.3d — (2011). 

When an electric cooperative's custom- 
ers who were Missouri residents alleged 
the utility failed to refund patronage capi- 
tal to the customers, the customers' claims 
were properly dismissed due to the cus- 
tomers' failure to seek relief from the 
Arkansas Public Service Commission 
(APSC) because (1) the customers did not 
allege a claim under Missouri law, and (2) 
the claims were based on an alleged fail- 
ure of the cooperative to comply with 
Arkansas law, specifically § 23-18-327. 
Capps v. Carroll Elec. Coop. Corp., 2011 
Ark. 48, — S.W3d — (2011). 



23-3-120 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



16 



Review. 

Under this section, a hunting club was 
required to first bring a complaint for 
declaratory and prospective relief before 
the Arkansas Public Service Commission 
(PSC), and to exhaust all of its adminis- 
trative remedies before the PSC prior to 



seeking judicial relief. Hempstead County 
Hunting Club v. Southwestern Elec. 
Power Co., 2011 Ark. 234, — S.W.3d — 
(2011). 

Cited: Brandon v. Arkansas W. Gas 
Co., 76 Ark. App. 201, 61 S.W.3d 193 
(2001). 



23-3-120. Definition. 



RESEARCH REFERENCES 



U. Ark. Little Rock L. Rev. Survey of sembly, Property Law, 24 U. Ark. Little 
Legislation, 2001 Arkansas General As- Rock L. Rev. 549. 

Subchapter 2 — Certificates of Convenience and Necessity 



SECTION. 

23-3-201. Requirement for new construc- 
tion or extension. 



Effective Dates. Acts 2003, No. 204, 
§ 19: Feb. 21, 2003. Emergency clause 
provided: "It is found and determined by 
the Eighty-fourth General Assembly that 
certain provisions of the Electric Con- 
sumer Choice Act of 1999, as amended by 
Act 324 of 2001, for the implementation of 
retail electric competition may take effect 
prior to ninety-one (91) days after the 
adjournment of this session; that this act 
is intended to prevent such implementa- 
tion; and that unless this emergency 
clause is adopted, this act may not go into 
effect until further steps have been taken 
toward retail electric competition, which 
the General Assembly has found not to be 
in the public interest. The General Assem- 
bly further finds that uncertainty sur- 
rounding the implementation of the Elec- 
tric Consumer Choice Act during the 
ninety (90) days following the adjourn- 
ment of this session and uncertainty re- 
garding the recovery of reasonable gen- 
eration costs, could discourage electric 
utilities from acquiring additional genera- 
tion resources; that retail electric custom- 
ers will require such resources; and that 
this act, in Section 11 and elsewhere, 
provides procedures to facilitate the ac- 
quisition of these resources. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 



safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 
Acts 2011, No. 910, § 13: Apr. 1, 2011. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that recent deci- 
sions by the Arkansas Court of Appeals 
and the Arkansas Supreme Court have 
pointed out the need for the General As- 
sembly to clarify its intentions regarding 
the certification and authorization of the 
location, financing, construction, and op- 
eration of major utility facilities; and that 
this act is immediately necessary to pro- 
vide for the continued economic develop- 
ment of the state and the orderly and 
efficient development of essential energy 
resources. Therefore, an emergency is de- 
clared to exist and this act being immedi- 
ately necessary for the preservation of the 
public peace, health, and safety shall be- 
come effective on: (1) The date of its ap- 
proval by the Governor; (2) If the bill is 
neither approved nor vetoed by the Gov- 
ernor, the expiration of the period of time 
during which the Governor may veto the 
bill; or (3) If the bill is vetoed by the 



17 REGULATION GENERALLY 23-3-201 

Governor and the veto is overridden, the 
date the last house overrides the veto." 



23-3-201. Requirement for new construction or extension. 

(a) New construction or operation of equipment or facilities for 
supplying a public service or the extension of a public service shall not 
be undertaken without first obtaining from the Arkansas Public Service 
Commission a certificate that public convenience and necessity require 
or will require the construction or operation. 

(b) This section does not require a certificate of public convenience 
and necessity for: 

(1) The replacement or expansion of existing equipment or facilities 
with similar equipment or facilities in substantially the same location 
or the rebuilding, upgrading, modernizing, or reconstructing of equip- 
ment or facilities that increase capacity if no increase in the width of an 
existing right-of-way is required; 

(2) The construction or operation of equipment or facilities for 
supplying a public service that has begun under a limited or conditional 
certificate or authority as provided in §§ 23-3-203 — 23-3-205; 

(3) The extension of a public service: 

(A) Within a municipality or district where a public service has 
been lawfully supplied; 

(B) Within or to territory then being served; or 

(C) That is necessary in the ordinary course; or 

(4) Except as provided in § 23-18-504(c), the construction or opera- 
tion of a major utility facility as defined in the Utility Facility Environ- 
mental and Economic Protection Act, § 23-18-501 et seq., or any 
exemption under the Utility Facility Environmental and Economic 
Protection Act, § 23-18-501 et seq. 

History. Acts 1935, No. 324, § 41; alter or diminish the Arkansas Public Ser- 

Pope's Dig., § 2104; Acts 1957, No. 103, vice Commission's authority under other- 

§ 3; 1967, No. 234, § 5; A.S.A. 1947, § 73- wise applicable law." 

240; Acts 1999, No. 1556, § 6; 2001, No. Amendments. The 2007 amendment 

324, § 1; 2003, No. 204, § 8; 2007, No. added the (a)(1) designation and added 

468, § 1; 2009, No. 164, § 1; 2011, No. (a)(2). 

910, § 12. The 2009 amendment rewrote the sec- 

A.C.R.C. Notes. Acts 2003, No. 204, tion. 

§ 16, provided: "Nothing in this act shall The 2011 amendment added (b)(4). 

Subchapter 3 — Merger or Acquisition of Control of Domestic 

Public Utilities 

SECTION. 

23-3-304. Penalties. 

23-3-316. Injunctions — Criminal pro- 
ceedings. 



23-3-304 PUBLIC UTILITIES AND REGULATED INDUSTRIES 18 

23-3-304. Penalties. 

(a) Any person who knowingly does or causes to be done any act, 
matter, or thing prohibited or declared to be unlawful by this subchap- 
ter, or who knowingly omits or fails to do any act, matter, or thing 
required by this subchapter, or knowingly causes such an omission or 
failure, shall be punished upon conviction thereof by a fine of not more 
than five thousand dollars ($5,000) or by imprisonment for not more 
than two (2) years, or both. In addition, the violation shall be punish- 
able upon conviction by a fine not exceeding five hundred dollars ($500) 
for each day during which the offense occurs. 

(b) Any person who knowingly violates any rule, regulation, restric- 
tion, condition, or order made or imposed by the Arkansas Public 
Service Commission under authority of this subchapter shall be guilty 
of a violation and, in addition to any other penalties provided by law, 
shall be punished upon conviction by a fine not exceeding five hundred 
dollars ($500) for each day during which such an offense occurs. 

(c) In addition, should any person consummate, by whatever means, 
the acquisition of any of the voting securities of a domestic public utility 
in violation of this subchapter, the commission upon finding that one (1) 
or more of the conditions set forth in § 23-3-310 exist or will exist by 
virtue of the acquisition, may order the immediate divestiture of so 
much of the voting securities held by that person as, in the commis- 
sion's opinion, is necessary to remove the domestic public utility from 
the control of that person. 

History. Acts 1985, No. 343, § 11; 
A.S.A. 1947, § 73-142.11; Acts 2005, No. 
1994, § 454. 

23-3-316. Injunctions — Criminal proceedings. 

(a) Whenever it shall appear to the Arkansas Public Service Com- 
mission, the Attorney General, or a domestic public utility which 
reasonably believes itself to be the object of a tender offer or attempt to 
obtain control as described in § 23-3-306, that any person is engaged or 
about to engage in any acts or practices which constitute or will 
constitute a violation of the provisions of this subchapter, or of any rule, 
regulation, or order thereunder, the commission, the Attorney General, 
or the domestic public utility may bring an action in Pulaski County 
Circuit Court to enjoin those acts or practices and to enforce compliance 
with this subchapter or any rule, regulation, or order thereunder. Upon 
a proper showing being made, a temporary restraining order, prelimi- 
nary injunction, or permanent injunction enjoining any such person 
and all others acting on behalf of or at the discretion of that person shall 
be granted without bond. 

(b) The commission, the Attorney General, and the domestic public 
utility shall transmit any evidence which may be available concerning 
those acts or practices or concerning apparent violations of this sub- 



19 REGULATION GENERALLY 23-3-504 

chapter to the prosecuting attorney for Pulaski County who, in his or 
her discretion, may institute appropriate criminal proceedings. 

History. Acts 1985, No. 343, § 10; Publisher's Notes. This section is be- 
A.S.A. 1947, § 73-142.10. ing set out to reflect a correction in (a). 

Subchapter 4 — Energy Conservation Endorsement Act of 1977 

Publisher's Notes. Acts 2005, No. "(3) A description of any commission- 

1939, § 1 provided: "Energy conservation ordered energy conservation program or 

report. measure that has caused a commission- 

"(a) On or before September 30, 2006, regulated utility to incur additional costs 

the Arkansas Public Service Commission f service or investments to conserve elec- 

shall prepare a report for the General tricit natural oil or other fuel 

Assembly of the State of Arkansas con- « (4) A descri tion of increases in 

cernmg its activities under the Energy , * ,,. x_ 

Conservation Endorsement Act of 1977, rates or c + har ^ es resulting from an energy 

§ 23-3-401 etseq., for the period of July 1, conservation program or measure ap- 

1998, through June 30, 2006. proved and ordered into effect by the com- 

"(b) The report shall include: mission under § 23-3-405(a)(3); and 

"(1) A description and analysis of the "(5) Any recommendations about the 

commission's efforts to engage in energy Energy Conservation Endorsement Act of 

conservation programs and measures as 1977 that the commission may want to 

defined in § 23-3-403; offer for the General Assembly's consider- 

"(2) A summary of the commission's ef- ation." 
forts to encourage public utility compli- 
ance with § 23-3-404; 



Subchapter 5 — Navigable Water Crossings 

SECTION. 

23-3-504. Petition regarding operation. 

23-3-504. Petition regarding operation. 

Pursuant to the authority granted in this subchapter, the Arkansas 
Public Service Commission shall require any river crossing proprietor 
operating or proposing to operate a navigable water crossing to file a 
verified petition with the commission showing such data and specifica- 
tions in relation thereto as the commission may reasonably prescribe. 
The petition may include the following: 

(1) The name of the river crossing proprietor and the nature of its 
organization and the nature of its business; 

(2) The river crossing proprietor's principal office and place of busi- 
ness; 

(3) A map, based upon a ground survey, showing the location of the 
public service facility at the point of the existing or proposed navigable 
water crossing, a drawing snowing in some detail the specifications of 
the proposed crossing, and a profile plat showing, with respect to the 
mean surface level and the bed of the navigable waterway, the eleva- 
tions of the existing or proposed public service facility; 



23-3-603 PUBLIC UTILITIES AND REGULATED INDUSTRIES 20 

(4) A general description of the physical nature of the bed underlying 
the navigable waterway at the point of the existing or proposed 
navigable water crossing, if the crossing is to be constructed on the 
underlying bed; 

(5) A description of materials and the type of construction employed 
or to be employed in effecting the navigable water crossing; 

(6) The size, capacity, and purpose of the public service facilities at 
the point of the navigable water crossing, together with operating 
conditions and safety factors; 

(7) A showing of approval or permissive authorization of the existing 
or proposed navigable water crossing by the Secretary of Defense or the 
Secretary of the Army of the United States or other federal agency 
having jurisdiction to consent to erections in navigable waterways; and 

(8) A prayer that the legality of the existing or proposed navigable 
water crossing be recognized pursuant to this subchapter. 

History. Acts 1961, No. 188, § 3; A.S.A. ing set out to reflect a formatting correc- 
1947, § 73-2203. tion in (3). 

Publisher's Notes. This section is be- 

SUBCHAPTER 6 — GAS UTILITIES EXTENSION PROJECTS 

SECTION. 

23-3-603. Grant of certificate generally. 

23-3-603. Grant of certificate generally. 

The Arkansas Public Service Commission shall grant a certificate if it 
finds that the proposed extension project is of economic benefit to the 
gas utility and is in the public interest. Within the body of the order, the 
commission shall apportion the future recovery of the cost of the excess 
expenditures between the surcharge and cost-of-service recovery, in 
whatever proportions or percentages the commission finds reasonable, 
from zero to one hundred percent (0 — 100%), inclusive. Once the 
certificate has been granted, including the approval of the amount and 
allocation of rates and surcharges, the gas utility may begin construc- 
tion and may expend funds on the certificated extension project. 

History. Acts 1987, No. 150, § 3. ing set out to reflect a correction in the 

Publisher's Notes. This section is be- second sentence. 

CHAPTER 4 
REGULATION OF RATES AND CHARGES GENERALLY 

subchapter 

1. General Provisions. 

2. Utilities Generally. 

6. Railroads and Other Carriers Generally. 

7. Railroads and Express Companies — Establishing Rates. 

8. Railroads and Transportation Companies — Passes and Free Transportation. 



21 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-101 



Subchapter 

10. Pole Attachments. 

11. Cooperatives. 



Subchapter 1 — General Provisions 



section. section. 

23-4-102. Commission's authority over 23-4-112. Reserve accounting for storm 
interstate rates, charges, restoration costs, 

classifications, and other 
actions. 

23-4-111. Valuation of public utility prop- 
erty for ratemaking pur- 
poses. 



Effective Dates. Acts 2007, No. 647, 
§ 2: Mar. 28, 2007. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly of the State of Arkan- 
sas that the rates paid by customers of 
public utilities may be affected in a man- 
ner that is burdensome to Arkansas util- 
ity consumers and harmful to economic 
development and that the Arkansas Pub- 
lic Service Commission needs to be imme- 
diately authorized to employ counsel and 
experts to protect the utility consumers or 
Arkansas. Therefore, an emergency is de- 
clared to exist and this act being immedi- 
ately necessary for the public peace, 
health, and safety shall become effective 
on: (1) The date of its approval by the 
Governor; (2) If the bill is neither ap- 
proved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 

Acts 2009, No. 434, § 2: Mar. 18, 2009. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that due to the 



severe ice storm that struck portions of 
the state on January 27 and 28, 2009, 
some of the electric public utilities operat- 
ing in Arkansas have incurred significant 
costs in restoring electric service; that 
electric utility service is essential to the 
public health and welfare for the preser- 
vation of food supplies, heating and cool- 
ing of buildings, and operation of com- 
merce that public electric utilities must 
have financial resources on hand to pur- 
chase replacement equipment and to field 
repair crews swiftly in order to accomplish 
the prompt restoration of electric service; 
and that this act is immediately necessary 
to provide public electric utilities the fi- 
nancial resources necessary to restore ser- 
vice in a timely manner. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 



23-4-101. Authority of commissions to establish rates — Excep- 
tions. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 



and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 



23-4-102 PUBLIC UTILITIES AND REGULATED INDUSTRIES 22 

§§ 2, 3, abolished the board and the ment, respectively. See Publisher's Notes 

agency and transferred their powers, to Chapter 2, Subchapter 2 of this title, 
functions, and duties to the State High- This note is being set out to correct an 

way Commission and the Arkansas State agency name. 
Highway and Transportation Depart- 

CASE NOTES 

Cited: Alltel Ark., Inc. v. Ark. Pub. 
Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 
889 (2002). 

23-4-102. Commission's authority over interstate rates, charges, 
classifications, and other actions. 

(a) The Arkansas Public Service Commission shall have the power to 
investigate all existing or proposed interstate rates, charges, and 
classifications, and all rules and practices in relation thereto promul- 
gated and prescribed by or for any public utility as defined in § 23-1- 
101, when the matters so investigated shall affect the public of this 
state. 

(b) When the existing or proposed interstate rates, charges, and 
classifications are in the opinion of the Arkansas Public Service 
Commission excessive or discriminatory or in violation of any act of 
Congress or in conflict with the rules, orders, or regulations of a 
commission created by Congress, the Arkansas Public Service Commis- 
sion may seek relief in the appropriate commission or in a court of 
competent jurisdiction. 

(c) For the purpose of this section, the Arkansas Public Service 
Commission: 

(1) Is exempt from the provisions of § 25-16-702 whenever the 
Arkansas Public Service Commission is a party to a proceeding under 
subsection (b) of this section; 

(2) May retain contract attorneys or contract consultants; and 
(3)(A) May adopt rules for direct recovery of the fees and expenses of 
contract attorneys and consultants from the affected utility under 
this section, provided that the utility is an electric public utility that 
is owned by a public utility holding company as defined by section 
1262 of the Energy Policy Act of 2005, Pub. L. No. 109-58. The 
maximum amount that may be directly recovered from an affected 
utility shall be three million dollars ($3,000,000) annually. 

(B)(i) In the event the Arkansas Public Service Commission di- 
rectly recovers the fees and expenses of its attorneys and consultants 
from an affected utility under this section, that utility shall be 
allowed to implement a surcharge mechanism to recover only the 
expenses directly recovered from that utility. 

(ii) The surcharge shall be established annually to recover only the 
amounts directly recovered from that utility during the preceding 
calendar year. 

(iii) The surcharge mechanism shall include provisions to address 
any excessive or deficient recoveries during the preceding calendar 



23 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-108 



year. The surcharge shall not include any interest or carrying 
charges. 

(iv) Any surcharge must be approved by the Arkansas Public 
Service Commission before it can be implemented. 



History. Acts 1935, No. 324, § 9; Pope's 
Dig., § 2072; A.S.A. 1947, § 73-203; Acts 
2007, No. 647, § 1. 

Amendments. The 2007 amendment 
deleted "and" preceding "classifications" 
and added "and other actions" in the sec- 



tion heading; substituted "Arkansas Pub- 
lic Service Commission" for "commission" 
in (a); rewrote (b); and added (c). 

U.S. Code. Section 1262 of the Energy 
Policy Act of 2005, Pub. L. No. 109-58, is 
compiled as 42 U.S.C. § 16451. 



23-4-103. Rates, rules, and regulations to be reasonable. 

Cross References. Ratemaking poli- 
cies for cost of acquisition or construction 
of incremental resources, § 23-18-107. 

CASE NOTES 



Analysis 

Emergency Rates. 
Standard of Review. 

Emergency Rates. 

The Arkansas Public Service Commis- 
sion emergency policy to assist low-in- 
come families obtain reconnection of their 
utilities did not cover all of the bad debt 
attributable to customers, but only to 
those customers who enrolled in the policy 
and the surcharge was of limited dura- 
tion, thus, it seemed unlikely that double 
recovery of the utilities bad debt expenses 
would occur. Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 80 Ark. App. 1, 



91 S.W.3d 75 (2002), rev'd, Ark. Gas Con- 
sumers, Inc. v. Ark. Pub. Serv. Comm'n, 
354 Ark. 37, 118 S.W.3d 109 (2003). 

Standard of Review. 

Pursuant to the Arkansas Public Ser- 
vice Commission's approval of the sale of 
an existing telecommunications utility's 
assets to a new telecommunications util- 
ity, where the record was not developed 
sufficiently for the appellate court to de- 
cide the issue of whether the application 
of PSC's parity order resulted in just and 
reasonable intrastate switched-access 
rates, a remand was required. Alltel Ark., 
Inc. v. Ark. Pub. Serv. Comm'n, 76 Ark. 
App. 547, 69 S.W.3d 889 (2002). 



23-4-108. Sliding scales of rates. 



CASE NOTES 



In General. 

Surcharge statutes tie surcharges to 
existing facility costs and costs directly 
related to legislative or regulatory re- 
quirements, and there is no authority 
granted to the Arkansas Public Service 
Commission for the implementation of so- 
cial programs; moreover; the same holds 
true of sliding-scale ratemaking where the 
statutory language of this section and 



Arkansas case law refer to costs associ- 
ated with gas production and service to 
the ratepayers, not low-income assistance 
programs. Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 
S.W.3d 109 (2003). 

Cited: Alltel Ark., Inc. v. Ark. Pub. 
Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 
889 (2002). 



23-4-111 PUBLIC UTILITIES AND REGULATED INDUSTRIES 24 

23-4-111. Valuation of public utility property for ratemaking 
purposes. 

(a) As used in this section: 

(1)(A) "Public utility" means a public utility as that term is denned 

under § 23-1-101. 

(B) However, "public utility" does not mean an incumbent local 
exchange carrier that has elected to be regulated under §§ 23-17-406 
— 23-17-408 or § 23-17-412; 

(2) "Original cost" means the cost incurred by a public utility when 
plant or property was first devoted to public service; and 

(3) "Net book value" means the original cost less reasonable accumu- 
lated depreciation of the plant or property. 

(b)(1) In determining the value of plant or property that is to be 
included in the rate base upon which the public utility will be allowed 
the opportunity to earn a return, the Arkansas Public Service Commis- 
sion shall use the net book value of the plant or property unless the 
commission determines that an adjustment is appropriate under sub- 
sections (c), (d), or (e) of this section. 

(2) However, for affiliate acquisitions, the value of plant or property 
that is to be included in the rate base upon which the public utility will 
be allowed the opportunity to earn a return, the commission shall use 
the net book value of the plant or property or a lesser amount, but in no 
event may the commission make an adjustment above net book value 
under subsection (c) of this section. 

(3) If the original cost of the plant or property is unknown, the 
commission shall estimate the net book value. 

(c) For plant or property acquired for an amount above net book 
value, the commission may allow the recovery through rates of an 
amount greater than net book value but not more than actual cost if the 
public utility can prove by a preponderance of the evidence that: 

(1) The original cost of the plant or property was reasonable and 
prudent; and 

(2) The public utility's customers will receive known and measurable 
benefits that are at least equal to the incremental amount for which the 
utility seeks recovery under this subsection. 

(d) For plant or property acquired for an amount below net book 
value, the commission may allow the recovery through rates of an 
amount greater than the cost of acquisition but not more than the net 
book value if the public utility can prove by a preponderance of the 
evidence that: 

(1) The original cost of the plant or property was reasonable and 
prudent; and 

(2) The public utility's customers will receive known and measurable 
benefits that are at least equal to the incremental amount for which the 
utility seeks recovery under this subsection. 

(e) The commission may allow the recovery through rates of an 
amount less than net book value if the commission determines that the 



25 REGULATION OF RATES AND CHARGES GENERALLY 23-4-112 

original cost of the plant or property was not reasonable or was 
imprudent. 

(f) However, for plant or property costs incurred in compliance with 
§ 23- 18- 106(a), the public utility shall have a rebuttable presumption 
of reasonableness and prudence for the purpose of the commission's 
determinations in subsections (c)-(e) of this section. 

History. Acts 2003, No. 1317, § 1. 

23-4-112. Reserve accounting for storm restoration costs. 

(a) This section applies to storm restoration costs incurred on or after 
January 1, 2009. 

(b) Upon application by an electric public utility and after notice and 
hearing, the Arkansas Public Service Commission shall permit an 
electric public utility to establish a storm cost reserve account consis- 
tent with the then-current Federal Energy Regulatory Commission 
Uniform System of Accounts, as modified to allow a debit balance to 
reflect the excess of storm restoration costs over the amount recovered 
in rates or otherwise credited to the storm cost reserve account. 

(c) The use of reserve accounting under this section is subject to the 
following: 

(1)(A) The initial amount included in the storm cost reserve account 
for an electric public utility shall be the amount included in the 
electric public utility's currently approved rates for storm restoration 
costs. 

(B) Thereafter, in future rate proceedings, the commission shall 
determine the appropriate level of the storm cost reserve account 
considering the electric public utility's historical costs associated 
with normal storm damage and other factors; 

(2) As a condition of an electric public utility's recovery of storm 
restoration costs through rates or inclusion of storm restoration costs in 
the storm cost reserve account, the commission shall audit, analyze, 
examine, and adjust all storm restoration costs to ensure that only 
reasonable and prudent storm restoration costs are included in the 
storm cost reserve account or are recoverable through rates; 

(3) Simple interest on any balance, credit, or debit in the storm cost 
reserve account shall accrue at a rate equal to the electric public 
utility's last approved rate-base rate of return; 

(4)(A) An electric public utility shall only charge operations and 
maintenance storm restoration costs that are not otherwise recovered 
against the balance in the storm cost reserve account. 

(B) The commission shall ensure that the storm restoration costs 
charged to the storm cost reserve account are: 

(i) Timely; 

(ii) Specific to restoring retail electric service in Arkansas; and 

(hi) Subject to any ratemaking adjustments of the types of ex- 
penses included in the storm restoration costs that are consistent 
with the determination in the electric public utility's most recent 
application for a general change in rates. 



23-4-112 PUBLIC UTILITIES AND REGULATED INDUSTRIES 26 

(C) An electric public utility shall: 

(i) File a quarterly report with the commission identifying each 
instance in which the electric public utility records storm restoration 
costs in the storm cost reserve account; and 

(ii) Provide with the quarterly report required by this subdivision 
(b)(4)(C) supporting documentation prescribed by the commission 
that includes without limitation: 

(a) Vegetation management spending; and 

(b) Labor costs; 

(5)(A) If an electric public utility spends less on storm restoration 
costs than the amount included in the electric public utility's cur- 
rently approved rates for storm restoration costs in any calendar 
year, the electric public utility shall credit to the storm cost reserve 
account any difference between the amount in rates and the amount 
actually spent on storm restoration costs during that calendar year. 

(B) If an electric public utility has received any of the following 
payments to offset storm restoration costs, the electric public utility 
shall credit those payments to the storm cost reserve account: 

(i) Insurance payments; 

(ii) Payments from a governmental entity; or 

(hi) Any other third-party payments; and 
(6)(A) The commission shall determine the following in the electric 
public utility's next application for a general change in rates: 

(i) The recovery of any debit balance in the electric public utility's 
storm cost reserve account through the electric public utility's rates 
and charges over a reasonable period; or 

(ii) The appropriate ratemaking treatment of any credit balance in 
the electric public utility's storm cost reserve account. 

(B) After notice and hearing and a finding that it is in the public 
interest, the commission may approve other ratemaking treatment 
otherwise allowed by law of any balance, credit, or debit in the 
electric public utility's storm cost reserve account. 

(C) The commission shall establish the method of recovery of a 
debit balance in the electric public utility's storm cost reserve account 
and may impose conditions to ensure that amounts recovered 
through rates are reasonable and prudent. 

(d) This section: 

(1) Does not prevent the commission from adjusting an electric 
public utility's rate of return associated with the increased certainty of 
recovery of the electric public utility's storm restoration costs as a result 
of establishing a storm cost reserve account under this section; and 

(2) Does not prevent an electric utility from petitioning the commis- 
sion to approve other methods of addressing storm restoration costs and 
the recovery of storm restoration costs through rates as allowed by law. 

History. Acts 2009, No. 434, § 1. 



27 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-209 
Subchapter 2 — Utilities Generally 



SECTION. 

23-4-209. Transition costs. 



Effective Dates. Acts 2003, No. 204, 
§ 19: Feb. 21, 2003. Emergency clause 
provided: "It is found and determined by 
the Eighty-fourth General Assembly that 
certain provisions of the Electric Con- 
sumer Choice Act of 1999, as amended by 
Act 324 of 2001, for the implementation of 
retail electric competition may take effect 
prior to ninety-one (91) days after the 
adjournment of this session; that this act 
is intended to prevent such implementa- 
tion; and that unless this emergency 
clause is adopted, this act may not go into 
effect until further steps have been taken 
toward retail electric competition, which 
the General Assembly has found not to be 
in the public interest. The General Assem- 
bly further finds that uncertainty sur- 
rounding the implementation of the Elec- 
tric Consumer Choice Act during the 
ninety (90) days following the adjourn- 



ment of this session and uncertainty re- 
garding the recovery of reasonable gen- 
eration costs, could discourage electric 
Utilities from acquiring additional genera- 
tion resources; that retail electric custom- 
ers will require such resources; and that 
this act, in Section 11 and elsewhere, 
provides procedures to facilitate the ac- 
quisition of these resources. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 



23-4-201. Electric, gas, telephone, or sewer utilities 
making authority. 

CASE NOTES 



— Rate- 



Commission's Jurisdiction. 

Supreme Court of Arkansas granted a 
gas utility company's writ of prohibition 
from a county court's denial of the compa- 
ny's motion to dismiss finding that the 
Arkansas Public Service Commission 
(APSC) had sole and exclusive jurisdiction 
under subdivision (a)(1) of this section 



over Arkansas residential gas customers' 
claims that they were being charged too 
much for natural gas because of the com- 
pany's alleged fraudulent conduct. Cen- 
terpoint Energy, Inc. v. Miller County Cir- 
cuit Court, 370 Ark. 190, 258 S.W.3d 336 
(2007). 



23-4-209. Transition costs. 

(a)(1) As used in this section, "transition costs" means those costs, 
investments, or unfunded mandates, either recurring or nonrecurring, 
incurred by an electric utility after July 30, 1999, that are found to have 
been necessary to carry out the electric utility's responsibilities associ- 
ated with efforts to implement retail open access or were mandated by 
statute or regulation and are not otherwise recoverable. 



23-4-305 PUBLIC UTILITIES AND REGULATED INDUSTRIES 28 

(2) In no event shall transition costs include retirement or severance 
programs, marketing or promotional activities, professional or advisory 
services, or legal costs associated with any competitive strategy. 

(3) In no event shall costs that are allowable in the utility's regulated 
cost of service and rates be included as transition costs, and the electric 
utility shall be required to demonstrate that its requested transition 
cost recovery does not contain amounts that are otherwise reflected in 
current rate levels. 

(4) Additionally, no electric utility shall recover transition costs 
unless approved by the Arkansas Public Service Commission pursuant 
to this chapter. 

(b)(1) An electric utility shall be allowed to recover transition costs 
incurred no later than January 1, 2002, as may be determined by the 
commission after notice and hearing. 

(2) The recovery shall be by a customer transition charge during a 
period of time ending thirty-six (36) months after February 21, 2003. 

(3) The customer transition charges shall be subject to annual review 
by the commission. Costs included in the charges shall be prudent, 
reasonable, and directly caused by Acts 1999, No. 1556, and rules and 
orders adopted by the commission to implement that act. 

(c) An electric utility shall have a right to recover from its customers 
any nuclear decommissioning costs, as determined by the commission, 
associated with the utility's generating assets. The commission shall 
retain jurisdiction sufficient to authorize the recovery of those costs. 

History. Acts 2003, No. 204, § 9. alter or diminish the Arkansas Public Ser- 

A.C.R.C. Notes. Acts 2003, No. 204, vice Commission's authority under other- 
§ 16, provided: "Nothing in this act shall wise applicable law." 

Subchapter 3 — Consumer Utilities Rate Advocacy Division 

23-4-305. Powers and duties. 

CASE NOTES 

Settlement Agreement. istrative proceeding commenced by rate- 
Where the Arkansas Attorney General payers; the Attorney General had repre- 
represented the state and all classes of sented the ratepayers' interest in the first 
utility ratepayers in administrative pro- administrative proceeding. Brandon v. Ar- 
ceeding, a settlement the Attorney Gen- kansas W. Gas Co., 76 Ark. App. 201, 61 
eral entered into in the proceeding barred S.W.3d 193 (2001). 
by the doctrine res judicata a later admin- 



29 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-501 



Subchapter 4 — Utilities — Rate Changes and Surcharges 

Generally 

23-4-406. Test periods to justify new rates. 

CASE NOTES 



Emergency Policies. 

The Arkansas Public Service Commis- 
sion's implementation of an emergency 
policy to assist low-income families obtain 
reconnection of their utilities did not con- 
stitute an unlawful single-issue ratemak- 
ing in violation of this section because it 
only applied to general rate increases or 



charges, pursuant to § 23-4-40 1(a); in the 
emergency policy, the surcharge imposed 
was not requested by the utilities. Ark. 
Gas Consumers, Inc. v. Ark. Pub. Serv. 
Comm'n, 80 Ark. App. 1, 91 S.W.3d 75 
(2002), rev'd, Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 
S.W.3d 109 (2003). 



23-4-410. Authority of Arkansas Public Service Commission to 
fix rates — Apportionment of increase. 

CASE NOTES 



Effective Date. 

Arkansas Public Service Commission's 
determination that a decrease in an elec- 
tric utility's rates, as established in the 
Commission's ratemaking order, would be 
effective for all bills rendered after June 
15, 2007, which was the date the Commis- 
sion issued the ratemaking order, was 
affirmed. Although the utility argued that 
it could face certain logistical difficulties 



in immediate implementation of the de- 
crease, these difficulties could be met by 
utilizing appropriate debits or credits to 
customer bills. Entergy Arkansas, Inc. v. 
Ark. Pub. Serv. Comm'n, 104 Ark. App. 
147, 289 S.W.3d 513 (2008), review de- 
nied, Entergy Ark., Inc. v. Ark. PSC, — 
Ark. — , — S.W.3d — , 2009 Ark. LEXIS 
453 (Apr. 23, 2009). 



Subchapter 5 — Utilities — Special Surcharges 
23-4-501. Legislative findings and intent. 

CASE NOTES 



Analysis 

Construction. 

Low-income Assistance Programs. 

Construction. 

This section speaks in terms of "addi- 
tional expenses with respect to existing 
facilities" and recovery through an in- 
terim surcharge of "such costs," and the 
court did not read the statute so broadly 
as to give the Arkansas Public Service 
Commission carte blanche authority to 
adopt and implement any public health or 
safety program of its choosing and assess 
the ratepayers for the cost. Ark. Gas Con- 



sumers, Inc. v. Ark. Pub. Serv. Comm'n, 
354 Ark. 37, 118 S.W.3d 109 (2003). 

Low-income Assistance Programs. 

Surcharge statutes tie surcharges to 
existing facility costs and costs directly 
related to legislative or regulatory re- 
quirements, and there is no authority 
granted to the Arkansas Public Service 
Commission for the implementation of so- 
cial programs; moreover; the same holds 
true of sliding-scale ratemaking where the 
statutory language of § 23-4-108 and Ar- 
kansas case law refer to costs associated 
with gas production and service to the 
ratepayers, not low-income assistance 



23-4-502 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



30 



programs. Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 
S.W.3d 109 (2003). 

23-4-502. Filing interim rate schedule. 

CASE NOTES 



Analysis 

Authority to Order Surcharge. 
Low-Income Assistance Programs. 

Authority to Order Surcharge. 

Public Utility Commission's interim 
surcharge, challenged by gas company, 
was statutorily authorized because it 
served to recoup the costs associated with 
a regulatory requirement relating to the 
protection of the public health and safety; 
even though this requirement was im- 
posed on the utilities by order and not by 
rule or regulation, it was implemented by 
the administrative agency to which the 
legislature had delegated the regulation 
of public utilities. Ark. Gas Consumers, 
Inc. v. Ark. Pub. Serv. Comm'n, 80 Ark. 
App. 1, 91 S.W.3d 75 (2002), rev'd, Ark. 



Gas Consumers, Inc. v. Ark. Pub. Serv. 
Comm'n, 354 Ark. 37, 118 S.W.3d 109 
(2003). 

Low-Income Assistance Programs. 

Surcharge statutes tie surcharges to 
existing facility costs and costs directly 
related to legislative or regulatory re- 
quirements, and there is no authority 
granted to the Arkansas Public Service 
Commission for the implementation of so- 
cial programs; moreover; the same holds 
true of sliding-scale ratemaking where the 
statutory language of § 23-4-108 and Ar- 
kansas case law refer to costs associated 
with gas production and service to the 
ratepayers, not low-income assistance 
programs. Ark. Gas Consumers, Inc. v. 
Ark. Pub. Serv. Comm'n, 354 Ark. 37, 118 
S.W.3d 109 (2003). 



Subchapter 6 — Railroads and Other Carriers Generally 



SECTION. 

23-4-607. 



Connecting railroad lines — Di- 
vision of charges. 



SECTION. 

23-4-620. Notice of rate changes. 
23-4-636. [Repealed.] 



23-4-601. Construction of §§ 23-4-602, 23-4-608 — 23-4-610, 23-4- 
615, 23-4-706, 23-10-301, and 23-11-101. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-602. Violations of §§ 23-4-601, 23-4-608 — 23-4-610, 23-4-615, 
23-4-706, 23-10-301, and 23-11-101, tariff of charges, 
or rules of commission — Penalties — Recovery. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 



by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



31 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-608 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-606. Continuous railroad lines. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, fun- 
tions, and duties to the State Highway 
Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-607. Connecting railroad lines — Division of charges. 

If any two (2) or more connecting lines of railroad in this state fail to 
agree upon a fair and just division of the charges arising from the 
transportation of freights, passengers, or cars over their lines, the 
Arkansas Transportation Commission [abolished] shall make the divi- 
sion and shall fix the pro rata part of such charges to be received by 
each of the connecting lines. 



History. Acts 1903, No. 130, § 4, p. 
218; C. & M. Dig., § 1647; Pope's Dig., 
§ 1968; A.S.A. 1947, § 73-1410. 

Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 



and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This section is being set out to correct a 
reference. 



23-4-608. Penalties for violations of §§ 23-4-606 and 23-4-607 — 
Actions to recover penalties. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-609 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



32 



23-4-609. Connecting railroad lines under one management. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-610. Railroads — Through freight rates and regulations. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-611. Railroads — Short lines. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-615. Railroads — Sleeping car tariffs. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-620. Notice of rate changes. 

(a) Unless the Arkansas Transportation Commission [abolished] 
otherwise orders, no public utility shall make any change in any rate 
duly established under this act except after thirty (30) days' notice to 
the commission. This notice shall plainly state the change proposed to 



33 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-624 



be made in the rates then in force and the time when the changed rates 
will go into effect. 

(b) The utility shall also give notice of the proposed changes to other 
interested parties as the commission in its discretion may direct. 

(c) The commission, for good cause shown, may allow changes in 
rates without requiring the thirty (30) days' notice, under such condi- 
tions as it may prescribe. All allowed changes shall be immediately 
indicated upon its schedules by the public utility. 



History. Acts 1935, No. 324, § 18; 
Pope's Dig., § 2081; Acts 1955, No. 31, 
§ 1; 1975 (Extended Sess., 1976), No. 
1181, § 1; A.S.A. 1947, § 73-217; reen. 
Acts 1987, No. 994, § 1. 

Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This section is being set out to reflect a 
correction in (c) and the preceding note. 



23-4-622. Investigation of rate changes. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-623. Suspension of proposed rates. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-624. Interim implementation of suspended rates. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



23-4-625 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



34 



Highway and Transportation Depart- This note is being set out to correct an 
ment, respectively. See Publisher's Notes agency name, 
to Chapter 2, Subchapter 2 of this title. 

23-4-625. Rate increase not effective until final order. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-626. Authority of commission to fix rates — Apportionment 
of increase. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-627. Failure of commission to reach timely decision — 
Conditional implementation of suspended rates. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-628. Issuance of commission's order — Rates to be col- 
lected. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



35 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-633 



23-4-629. Surcharge to collect rates increased by courts. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-630. Refunds of excessive rate collections under bond. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-631. Refunds of excessive bonded collections — Order not 
stayed during rehearing. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-632. Surcharge to collect excessive refunds, 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-633. Petition for mandamus. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 



and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 



23-4-634 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



36 



§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 



ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-634. Suit to compel refunds — Proceeds. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-635. Changes in rates by common carriers. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-636. [Repealed.] 



Publisher's Notes. This section, con- 
cerning the penalty for false reports re- 
garding receipt of money for transporta- 
tion, was repealed by Acts 2005, No. 1994, 



§ 562. The section was derived from Acts 
1897, No. 21, § 1, p. 28; C. & M. Dig., 
§ 7136; Pope's Dig., § 9122; A.S.A. 1947, 
§ 73-1430. 



23-4-637. Discriminatory interterritorial freight rates. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



37 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-708 



Subchapter 7 — Railroads and Express Companies — Establishing 

Rates 



SECTION. 

23-4-703. Acts 1899, No. 53, not appli- 
cable to interstate traffic. 

23-4-718. Access to railroad books by 
commissioners — Penal- 
ties. 



SECTION. 

23-4-719. Enforcement of Acts 1899, No. 
53 — Mandamus. 



23-4-703. Acts 1899, No. 53, not applicable to interstate traffic. 

The provisions of this act shall not be construed as to require the 
Arkansas Transportation Commission [abolished] to investigate or call 
upon any railroad or express company for its schedule or tariff of 
charges in the transportation of passengers or property from any point 
wholly outside of this state or to in any way interfere with such rates or 
charges. 



History. Acts 1899, No. 53, § 20, p. 82; 
C. &M. Dig., § 1629; Pope's Dig., § 1951; 
A.S.A. 1947, § 73-1520. 

Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 



§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This section is being set out to correct 
an agency name in the text and the pre- 
ceding note. 



23-4-706. Penalties — Actions to recover. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-708. Rate sheets and tariff charges furnished commission 
by railroads. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 



and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 



23-4-709 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



38 



to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 

23-4-709. Rate-making procedure. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-714. Complaints — Investigation. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-715. Complaints — Hearings. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-4-716. Liability as to rates approved by commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



39 REGULATION OF RATES AND CHARGES GENERALLY 23-4-719 

23-4-717. Railroads required to furnish copies of traffic agree- 
ments and other information to commission. 

Publisher's Notes. The Arkansas agency and transferred their powers, 

Transportation Commission, referred to in functions, and duties to the State High- 

this section, was abolished and replaced way Commission and the Arkansas State 

by the Transportation Regulatory Board Highway and Transportation Depart- 

and the Transportation Safety Agency me nt, respectively. See Publisher's Notes 

pursuant to Acts 1987, No. 572. However, to Chapter 2, Subchapter 2 of this title. 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, This note ig bei get Qut to correct an 
and Acts 1989 (1st Ex. Sess.), No. 153, 



2, 3, abolished the board and the 



agency name. 



23-4-718. Access to railroad books by commissioners — Penal- 
ties. 

(a)(1) The commissioners of the Arkansas Transportation Commis- 
sion [abolished], or any of them, shall have the right at such times as 
they may deem necessary to inspect the books and papers of any 
railroad company and to examine under oath any officer, agent, or 
employee of the railroad in relation to the business and affairs of the 
railroad. 

(2) If any railroad refuses to permit the commissioners, or any of 
them, to examine its books and papers, the railroad company, for each 
offense, shall pay to the State of Arkansas not less than one hundred 
dollars ($100) nor more than five hundred dollars ($500) for each day it 
shall so fail and refuse. 

(b) Any officer, agent, or employee of any railroad company who, 
upon proper demand, shall fail or refuse to exhibit to the commission- 
ers, or any of them, any book or paper of such a railroad company which 
is in the possession or under the control of the officer, agent, or 
employee shall be deemed guilty of a misdemeanor and upon conviction 
in any court having jurisdiction shall be fined for each offense a sum not 
less than one hundred dollars ($100) nor more than five hundred dollars 
($500). 

History. Acts 1899, No. 53, §§ 25, 26, p. and Acts 1989 (1st Ex. Sess.), No. 153, 
82; C. & M. Dig., §§ 1625, 1626; Pope's §§ 2, 3, abolished the board and the 
Dig., §§ 1947, 1948; A.S.A. 1947, §§ 73- agency and transferred their powers, 
1524, 73-1525. functions, and duties to the State High- 
Publisher's Notes. The Arkansas way Commission and the Arkansas State 
Transportation Commission, referred to in Highway and Transportation Depart- 
this section, was abolished and replaced ment, respectively. See Publisher's Notes 
by the Transportation Regulatory Board to Chapter 2, Subchapter 2 of this title, 
and the Transportation Safety Agency This section is being set out to correct 
pursuant to Acts 1987, No. 572. However, an agency name in (a)(1) and the preced- 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, ing note. 

23-4-719. Enforcement of Acts 1899, No. 53 — Mandamus. 

If any person or corporation operating any railroad or express 
company fails, refuses, or neglects, after notice by the Arkansas 
Transportation Commission [abolished] , to put up its rate sheet, giving 



23-4-803 PUBLIC UTILITIES AND REGULATED INDUSTRIES 40 

its tariff of charges in the manner, place, and time as provided in this 
act; to furnish the commission with the rate sheet and tariff of charges 
as provided for in this act; to furnish cars and motive power for the 
prompt transportation of freight as provided in this act; to comply with 
any provision of this act; or to make returns as required by this act, 
then the person or corporation shall be subject to a writ of mandamus. 
The writ shall be issued by any circuit court of this state where the 
person or corporation has an office, agent, or place of business to compel 
a compliance with the provisions and requirements of the act. The writ 
shall issue in the name of the State of Arkansas at the relation of the 
commission appointed under the provisions of this act, and failure to 
comply with the requirements shall be punishable as and for a 
contempt. 

History. Acts 1899, No. 53, § 22, p. 82; §§ 2, 3, abolished the board and the 
C. & M. Dig., § 1694; Pope's Dig., § 1997; agency and transferred their powers, 
A.S.A. 1947, § 73-1521. functions, and duties to the State High- 
Publisher's Notes. The Arkansas way Commission and the Arkansas State 
Transportation Commission, referred to in Highway and Transportation Depart- 
this section, was abolished and replaced me nt, respectively. See Publisher's Notes 
by the Transportation Regulatory Board to Chapter 2, Subchapter 2 of this title, 
and the Transportation Safety Agency This section is being set out to cor rect 

? UrSU ^o t o t °, 1 ActS l , l98 J' N< ?' 5 J 2 ' £° w r«o' an a S enc y name in the first sentence and 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, { £ preceding note 
and Acts 1989 (1st Ex. Sess.), No. 153, m me P receam S note - 

Subchapter 8 — Railroads and Transportation Companies — Passes 

and Free Transportation 

SECTION. 

23-4-803. [Repealed.] 
23-4-803. [Repealed.] 

Publisher's Notes. This section, con- from Acts 1887, No. 22, § 4, p. 27; C. & M. 

cerning the penalty for state officers ac- Dig., § 891; Pope's Dig., § 1093; A.S.A. 

cepting passes, was repealed by Acts 2005, 1947, § 73-1530. 
No. 1994, § 563. The section was derived 

Subchapter 10 — Pole Attachments 

SECTION. SECTION. 

23-4-1001. Definitions. 23-4-1004. Authority of commission to 
23-4-1002. Nondiscriminatory access for hear complaints. 

pole attachments. 23-4-1005. Certification. 

23-4-1003. Regulation by commission of 23-4-1006. Applicability, 
rates, terms, and condi- 
tions. 



41 REGULATION OF RATES AND CHARGES GENERALLY 23-4-1003 

23-4-1001. Definitions. 

As used in this subchapter: 

(1)(A) "Pole attachment" means the attachment of wires and related 
equipment to a pole, duct, or conduit owned or controlled by a public 
utility for the provision of: 

(i) Electric service; 

(ii) Telecommunication service; 

(iii) Cable television service; 

(iv) Internet access service; or 

(v) Other related information services. 

(B) "Pole attachment" does not mean multiground neutral connec- 
tions; and 

(2)(A) "Public utility" means an electric utility as denned in § 23-1- 
101, an electric cooperative as denned in § 23-18-201, or a telecom- 
munications provider as defined in § 23-17-403(24). 

(B) "Public utility" does not mean a municipal electric utility. 

History. Acts 2007, No. 740, § 1. 

23-4-1002. Nondiscriminatory access for pole attachments. 

A public utility shall provide nondiscriminatory access for a pole 
attachment to: 

(1) An electric utility; 

(2) A telecommunications provider; 

(3) A cable television service; or 

(4) A cable Internet access service. 

History. Acts 2007, No. 740, § 1. 

23-4-1003. Regulation by commission of rates, terms, and con- 
ditions. 

(a) The Arkansas Public Service Commission shall regulate the 
rates, terms, and conditions upon which a public utility shall provide 
access for a pole attachment. 

(b)(1) The commission shall develop rules necessary for the effective 
regulation of the rates, terms, and conditions upon which a public 
utility shall provide access for a pole attachment. 

(2) In developing and implementing the rules under this subsection, 
the commission shall consider: 

(A) The interests of the subscribers of the services offered through 
pole attachments; 

(B) The interests of the consumers of the public utility services; 

(C) Maintenance of reliability of public utility services; and 

(D) Compliance with applicable safety standards. 

(3) The commission shall adopt the initial rules under this subsec- 
tion within one (1) year of July 31, 2007. 



23-4-1004 PUBLIC UTILITIES AND REGULATED INDUSTRIES 42 

(c) Nothing in this section prevents a public utility, an electric utility, 
a telecommunications provider, a cable television service, or a cable 
Internet access service from entering into a voluntarily negotiated, 
written agreement regarding the rates, terms, and conditions upon 
which access for a pole attachment is provided. 

History. Acts 2007, No. 740, § 1. 

23-4-1004. Authority of commission to hear complaints. 

(a) The Arkansas Public Service Commission may hear and deter- 
mine all complaints arising from: 

(1) A public utility's failure or refusal to provide access for a pole 
attachment; 

(2) The inability of a public utility and an entity seeking access for a 
pole attachment to reach a voluntarily negotiated, written agreement 
governing access for the pole attachment; and 

(3) Disputes between a public utility and an entity over the imple- 
mentation of an existing contract granting the entity access for a pole 
attachment. 

(b) A public utility shall provide information required for the com- 
mission to verify that the costs associated with access for pole attach- 
ments provided by the public utility are just and reasonable. 

(c)(1) The commission shall resolve any complaint or dispute that the 
commission may hear under this section within one hundred eighty 
(180) days after the complaint is filed with the commission. 

(2) However, the commission by rule may extend the time to resolve 
a complaint or dispute for up to three hundred sixty (360) days after the 
complaint is filed. 

History. Acts 2007, No. 740, § 1. 

23-4-1005. Certification. 

Upon the adoption of rules under § 23-4-1003, the Arkansas Public 
Service Commission shall certify to the Federal Communications Com- 
mission that: 

(1) The Arkansas Public Service Commission regulates the rates, 
terms, and conditions of access for pole attachments; 

(2) In regulating the rates, terms, and conditions of access for pole 
attachments, the state considers the interests of the: 

(A) Subscribers of service offered by the pole attachments; and 

(B) Customers of the public utility; and 

(3) The Arkansas Public Service Commission has adopted rules 
under this subchapter that: 

(A) Implement the Arkansas Public Service Commission's regula- 
tory authority; and 

(B) Provide that complaints heard by the Arkansas Public Service 
Commission under this subchapter shall be resolved: 



43 



REGULATION OF RATES AND CHARGES GENERALLY 23-4-1101 



(i) Within one hundred eighty (180) days after the complaint is 
filed; or 

(ii) If the Arkansas Public Service Commission elects to extend the 
period, not exceeding three hundred sixty (360) days after the 
complaint is filed. 

History. Acts 2007, No. 740, § 1. 

23-4-1006. Applicability. 

Nothing in this subchapter shall affect the authority and jurisdiction 
of the Federal Communications Commission over the rates, terms, and 
conditions of a pole attachment until after the final certification of the 
Arkansas Public Service Commission under § 23-4-1005. 

History. Acts 2007, No. 740, § 1. 

Subchapter 11 — Cooperatives 



SECTION. 

23-4-1101. Definitions. 

23-4-1102. Exemption from general rate 
case procedure. 

23-4-1103. Notification of proposed rate 
and charge modification. 

23-4-1104. Alternative procedure for 
modifying rates and 
charges of a generation 
and transmission coopera- 
tive. 



SECTION. 

23-4-1105. 



23-4-1106. 



23-4-1107. 



Alternative procedure for 
modifying rates and 
charges of a member coop- 
erative. 

Limitation on increase in 
rates. 

Arkansas Public Service Com- 
mission's jurisdiction not 
affected. 



Effective Dates. Acts 2009, No. 676, 
§ 2: Mar. 27, 2009. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly of the State of Arkan- 
sas that the costs that drive electric utility 
costs are constantly changing; that elec- 
tric cooperatives need to have procedures 
that permit their rates to change in re- 
sponse to those changing conditions; and 
that this act is immediately necessary 
because it is crucial to the provision of safe 
and reliable electric service that electric 
cooperatives recover their costs in a 



timely manner. Therefore, an emergency 
is declared to exist and this act being 
immediately necessary for the preserva- 
tion of the public peace, health, and safety 
shall become effective on: (1) The date of 
its approval by the Governor; (2) If the bill 
is neither approved nor vetoed by the 
Governor, the expiration of the period of 
time during which the Governor may veto 
the bill; or (3) If the bill is vetoed by the 
Governor and the veto is overridden, the 
date the last house overrides the veto." 



23-4-1101. Definitions. 

As used in this subchapter: 

(1) "Board" means the board of directors of a generation and trans- 
mission cooperative; 



23-4-1102 PUBLIC UTILITIES AND REGULATED INDUSTRIES 44 

(2) "Generation and transmission cooperative" means a rural electric 
cooperative formed under the Electric Cooperative Corporation Act, 
§ 23-18-301 et seq., that: 

(A) Does not have a certificated service territory; and 

(B) Exclusively sells electricity at wholesale; 

(3) "Member cooperative" means a rural electric cooperative that 
sells electricity at retail and is a member of a generation and transmis- 
sion cooperative; and 

(4) "Retail cooperative member" means the individual member- 
owner of a member cooperative. 

History. Acts 2009, No. 676, § 1. 

23-4-1102. Exemption from general rate case procedure. 

A generation and transmission cooperative may modify its rates and 
charges if: 

(1) At least three-fourths (3/4) of its board votes to change its rates 
and charges; 

(2) A proposed increase in the generation and transmission coopera- 
tive's rates and charges does not exceed five percent (5%) in any 
twelve-month period of the total gross revenues of the generation and 
transmission cooperative; and 

(3) Any additional requirements of this subchapter are satisfied. 

History. Acts 2009, No. 676, § 1. 

23-4-1103. Notification of proposed rate and charge modifica- 
tion. 

(a)(1) A generation and transmission cooperative shall notify the 
Arkansas Public Service Commission, the Attorney General, and the 
member cooperatives in writing at least sixty (60) days before the board 
votes on a proposed modification of its rates and charges under 
§ 23-4-1102. 
(2)(A) The notice under subdivision (a)(1) of this section shall: 
(i) Be in writing; 

(ii) Include a schedule of the proposed modification of rates and 
charges; and 

(iii) Include the effective date of the proposed change. 
(B) However, if the board subsequently reduces a proposed in- 
crease in rates and charges after providing notice under subdivision 
(a)(1) of this section, the board does not have to provide any 
additional notice under this subsection. 

(b)(1) The generation and transmission cooperative shall provide 
notice of its proposed modification of its rates and charges to the public 
not less than forty (40) days before the board votes on the proposed 
change in its rates and charges. 

(2) The notice under subdivision (b)(1) of this section shall: 



45 REGULATION OF RATES AND CHARGES GENERALLY 23-4-1104 

(A) Be substantially similar to the public notice required by the 
commission's Rules of Practice and Procedure for general rate case 
procedures; 

(B) Be published in: 

(i) A newspaper of general circulation in the service territory of the 
generation and transmission cooperative; or 
(ii) Either of the following: 

(a) Any publication that is regularly provided to the retail coop- 
erative members by the member cooperatives; or 

(b) The generation and transmission cooperative's newsletter to 
retail cooperative members; and 

(C) Include a statement estimating: 

(i) The retail impact of the proposed change in rates and charges 
on: 

(a) A per-kilowatt-hour basis; and 

(b) An average residential retail cooperative member's monthly 
bill; and 

(ii) The effective date of the proposed change in rates and charges. 

History. Acts 2009, No. 676, § 1. 

23-4-1104. Alternative procedure for modifying rates and 
charges of a generation and transmission coopera- 
tive. 

(a)(1)(A) After the board approves the modification in rates and 
charges under § 23-4-1102, the generation and transmission coop- 
erative shall file for the approval of the Arkansas Public Service 
Commission an application for the change in rates and charges and 
tariffs containing the proposed change in rates and charges. 

(B) However, a rate rider or other rider to the generation and 
transmission cooperative's base rates and charges shall not be 
modified under this subchapter unless the commission determines 
otherwise. 
(2) In addition to an attachment containing the proposed tariffs to 

effect the modification of the rates and charges, the application shall 

provide the following: 

(A) Proof of the board vote required by § 23-4-1102; 

(B) The proof of notice required by § 23-4-1103; 

(C) A current calculation of the generation and transmission 
cooperative's: 

(i) Times interest earned ratio; 
(ii) Debt service coverage ratio; and 

(iii) Margins as a percent of revenue for the last available calendar 
year; 

(D) An analysis of the impact of the proposed change in rates and 
charges on each member cooperative's cost of wholesale power that is 
acquired from the generation and transmission cooperative; 



23-4-1105 PUBLIC UTILITIES AND REGULATED INDUSTRIES 46 

(E) Documentary evidence that the impact of the proposed change 
in rates and charges does not exceed five percent (5%) of the 
generation and transmission cooperative's total gross revenues for 
the previous calendar year; 

(F) Documentation that shows the derivation of the generation 
and transmission cooperative's proposed changes in its rates and 
charges; and 

(G)(i) Any other supporting documentation or evidence required by 
the commission. 

(ii)(a) However, the commission shall not require the generation 
and transmission cooperative to prepare a cost of service study. 

(b) Instead of a new cost of service study, the generation and 
transmission cooperative shall rely upon the most recent commis- 
sion-approved cost allocation. 

(b) Within ninety (90) days after the date of filing the generation and 
transmission cooperative's application, the commission shall issue its 
final determination regarding the proposed modification of the rates 
and charges of the generation and transmission cooperative. 

History. Acts 2009, No. 676, § 1. 

23-4-1105. Alternative procedure for modifying rates and 
charges of a member cooperative. 

(a) A member cooperative may propose a modification of its retail 
rates and charges to incorporate the proposed change in the generation 
and transmission cooperative's wholesale rates and charges filed under 
§ 23-4-1104 if: 

(1) The member cooperative files its application for a modification of 
its retail rates and charges with the Arkansas Public Service Commis- 
sion on the same date as the generation and transmission cooperative 
files its application for a modification of its change in wholesale rates 
and charges under § 23-4-1104; and 

(2) The member cooperative apportions its proposed change in rates 
and charges in a manner that reflects, as closely as practicable, its cost 
of providing service to each class. 

(b) Within ninety (90) days after a member cooperative files its 
application under subsection (a) of this section, the commission shall 
review and approve the modification of the rates and charges of a 
member cooperative's retail rates and charges that reasonably reflect 
those changes in the generation and transmission cooperative's whole- 
sale rates and charges that were approved by the commission under 
§ 23-4-1104. 

History. Acts 2009, No. 676, § 1. 



47 PASSENGERS AND FREIGHT GENERALLY 23-10-208 

23-4-1106. Limitation on increase in rates. 

The generation and transmission cooperative shall not increase its 
rates and charges under this subchapter by an aggregate total of more 
than eight percent (8%) during any twenty-four-month period. 

History. Acts 2009, No. 676, § 1. 

23-4-1107. Arkansas Public Service Commission's jurisdiction 
not affected. 

This subchapter does not affect the Arkansas Public Service Commis- 
sion's jurisdiction over a generation and transmission cooperative , 
including without limitation the authority to investigate and set the 
rates and charges of the generation and transmission cooperative, or a 
member cooperative as otherwise provided by law. 

History. Acts 2009, No. 676, § 1. 

CHAPTER 10 

TRANSPORTATION OF PASSENGERS AND FREIGHT 

GENERALLY 



subchapter. 
2. Passengers. 
4. Freight — Railroads. 



Subchapter 2 — Passengers 



section. 

23-10-201 — 23-10-208. [Repealed.] 



A.C.R.C. Notes. Pursuant to Acts 2005, section was not set out in the act and 
No. 1994, § 564, § 23-10-202 was re- stricken through, 
pealed even though the text of that Code 



23-10-201 — 23-10-208. [Repealed.] 

A.C.R.C. Notes. Pursuant to Acts 2005, at junction, announcements of depar- 

No. 1994, § 564, § 23-10-202 was re- tures, destinations, and track numbers, 

pealed even though the text of that Code violation of §§ 23-10-204 and 23-10-205 a 

section was not set out in the act and misdemeanor, protection of passengers 

stricken through. from annoyance or fraud and penalty for 

Publisher's Notes. These sections, perpetration, and penalties for business 
concerning depot facilities, drinking water solicitations of passengers, were repealed 
on passenger trains, bulletin boards show- by Acts 2005, No. 1994, § 564. The see- 
ing time of arrival and departure of trains, tions were derived from the following 
passenger trains to depart only from depot sources: 



23-10-301 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



48 



23-10-201. Acts 1891, No. 17, § 6, p. 15; 
1903, No. 160, §§ 1-3, p. 302; C. & M. Dig., 
§§ 950-953; Pope's Dig., §§ 1154-1157; 
A.S.A. 1947, §§ 73-1201 — 73-1205. 

23-10-202. Acts 1891, No. 17, § 6, p. 15; 
C. & M. Dig., § 953; Pope's Dig., § 1157; 
A.S.A. 1947, § 73-1205. 

23-10-203. Acts 1891, No. 132, §§ 1, 2, 
p. 221; C. & M. Dig., §§ 954, 955; Pope's 
Dig., §§ 1158, 1159; A.S.A. 1947, §§ 73- 
1206, 73-1207. 

23-10-204. Acts 1907, No. 146, § 1, p. 
353; C. & M. Dig., § 960; Pope's Dig., 
§ 1164; A.S.A. 1947, § 73-1208. 

23-10-205. Acts 1907, No. 146, §§ 2-4, p. 



353; C. & M. Dig., §§ 961-963; Pope's Dig., 
§§ 1165-1167; A.S.A. 1947, §§ 73-1209 — 
73-1211. 

23-10-206. Acts 1907, No. 146, § 5, p. 
353; C. & M. Dig., § 964; Pope's Dig., 
§ 1168; A.S.A. 1947, § 73-1212. 

23-10-207. Acts 1889, No. 93, § 1, p. 
123; 1897, No. 34, § 1, p. 44; C. & M. Dig., 
§ 945; Pope's Dig., § 1149; A.S.A. 1947, 
§ 73-1213. 

23-10-208. Acts 1907, No. 236, §§ 1-3, p. 
553; C. & M. Dig., §§ 947-949; Pope's Dig., 
§§ 1151-1153; A.S.A. 1947, §§ 73-1215 — 
73-1217. 



Subchapter 3 — Freight — Carriers Generally 

23-10-301. Express and freight rules prescribed by Arkansas 
Transportation Commission [abolished]. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-10-302. Express offices and delivery — Penalties. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Subchapter 4 — Freight — Railroads 

SECTION. 

23-10-435. Liability for cars of another 
railroad. 

23-10-406. Penalties for violations of §§ 23-10-402, 23-10-403, 
23-10-405, and 23-10-409 — 23-10-431, or rules of 
commission — Actions to recover. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 



this section, was abolished and replaced 
by the Transportation Regulatory Board 



49 



PASSENGERS AND FREIGHT GENERALLY 



23-10-435 



and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 



way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-10-415. Duty to exchange and return cars. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to reflect a 
name change. 



23-10-432. Duty to furnish cars — Reasonable time for request- 
ing cars. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-10-434. Liability for failure to furnish or exchange cars — 
Exceptions. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-10-435. Liability for cars of another railroad. 

(a) Every railroad company using cars of another railroad company, 
or cars which have been delivered to it by the other railroad company, 
shall be liable to the party entitled thereto to pay for the reasonable use 
and hire thereof and for injury or damages to or destruction of the cars, 
while in its possession or under its control, for the amount of such 
injury. In the case of cars in the shipment of freight between points 
wholly within this state, the amount for the use or hire of the cars may 



23-10-436 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



50 



be prescribed by the Arkansas Transportation Commission [abolished] , 
except where the owners of the cars and the railway companies agree 
upon the compensation, in which case the amount so fixed shall govern. 
(b) When any railroad company or owner of any car is dissatisfied 
with the amount fixed by the commission for the use, hire, loss, or 
destruction of, or damage to, the cars, or when the railroad company 
which is liable therefor fails to pay for the use, hire, loss, or destruction 
of the cars, the commission or person entitled thereto, or which is liable 
for the use, hire, loss, injury, or destruction of the cars, shall be entitled 
to establish the reasonable value thereof in a suit brought in any court 
of this state having jurisdiction of the parties and of the amount in 
controversy, and the court shall render such judgment as to it shall 
deem just and reasonable. 



History. Acts 1909, No. 277, § 2, p. 
814; C. & M. Dig., § 1635; Pope's Dig., 
§ 1956; A.S.A. 1947, § 73-1306. 

Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 



§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This section is being set out to correct 
an agency name in (b) and the preceding 
note. 



23-10-436. Penalty for gross negligence in not furnishing or 
exchanging cars — Fee of prosecuting attorney. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-10-437. Intrastate freight — Rules and regulations. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



51 



ORGANIZATION OF RAILROADS 

CHAPTER 11 



23-11-202 



ESTABLISHMENT AND ORGANIZATION OF 
RAILROADS 

Subchapter 1 — General Provisions 



23-11-101. Enforcement of laws or orders on complaint. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-103. Railroads and express companies 
— Failure to report — Penalty. 



Annual reports 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-104. Report of commission as to information regarding 
railroad companies. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Subchapter 2 — Railroad Incorporation Act of 1959 



23-11-202. Definitions. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 



pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 



23-11-203 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



52 



functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 



This note is being set out to correct an 
agency name. 



23-11-203. Articles of incorporation. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-204. Formation of railroad corporation — Application 
Contents. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-205. Application for incorporation — Hearing — Order of 
commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-207. Filing of papers — Effect. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



53 



ORGANIZATION OF RAILROADS 



23-11-222 



23-11-209. Specific powers and liabilities. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-219. Subscription contracts for sale of stock. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-220. Amendment of articles of incorporation. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-221. Dissolution or liquidation of railroad corporation. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-222. Corporations existing prior to June 11, 1959 — Appli- 
cation of subchapter — Extension of existence. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 



and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 



23-11-223 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



54 



§§2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 



ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-11-223. Corporations existing prior to June 7, 1945 — Exten- 
sion of charter. 



Publisher's Notes. Acts 1945, No. 181, 
§ 4, provided, in part, that the primary 
purpose of the act was to abolish the State 
Board of Railroad Incorporation and to 
vest in the Arkansas Public Service Com- 
mission all powers and duties of the State 
Board of Railroad Incorporation and pro- 
vided for the transfer of the property of 
the State Board of Railroad Incorporation 
to the Arkansas Public Service Commis- 
sion. 

The powers and duties of the Arkansas 
Public Service Commission as to railroads 
were transferred to the Arkansas Trans- 
portation Commission. See Publisher's 
Notes to Chapter 2 of this title. The Ar- 



kansas Transportation Commission was 
abolished and replaced by the Transporta- 
tion Regulatory Board and the Transpor- 
tation Safety Agency pursuant to Acts 
1987, No. 572. However, Acts 1989 (1st Ex. 
Sess.), No. 67, § 23, and Acts 1989 (1st Ex. 
Sess.), No. 153, §§ 2, 3 abolished the 
board and the agency and transferred 
their powers, functions, and duties to the 
State Highway Commission and the Ar- 
kansas State Highway and Transporta- 
tion Department, respectively. See Pub- 
lisher's Notes to Chapter 2, Subchapter 2 
of this title. 

This note is being set out to reflect a 
correction. 



Subchapter 3 — Sale, Lease, or Consolidation 

23-11-302. Authority to sell or lease road or property to connect- 
ing foreign railroad — Authority to acquire other 
railroads — Ratification. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Subchapter 4 — Foreign Railroads 



23-11-402. Purchase or lease state roads — Exception. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 



and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 



55 



OPERATION AND MAINTENANCE OF RAILROADS 23-12-103 



to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 

CHAPTER 12 
OPERATION AND MAINTENANCE OF RAILROADS 

subchapter. 
2. Roadbeds and Rights-of-Way. 

4. Equipment — Safety Precautions. 

5. Employees. 

8. Offenses Relating to Railroads. 

9. Liability for Injuries. 

Subchapter 1 — General Provisions 
23-12-101. Sections 23-12-101 — 23-12-103 cumulative. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-12-102. Inspection of railroads by Arkansas Transportation 
Commission [abolished]. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-12-103. Unsafe tracks, bridges, etc. — Inspection — Notice to 
railroad of necessary repairs, etc. — Failure to 
repair or to stop traffic — Liability for injuries — 
Penalties. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



23-12-104 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



56 



Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 



This note is being set out to correct an 
agency name. 



23-12-104. Number and frequency of trains and streetcars. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Subchapter 2 — Roadbeds and Rights-of-Way 



SECTION. 

23-12-206. Rail line abandonment pro- 
cess. 
23-12-207. Transfer of ownership or re- 



sponsibility of railroad 
right-of-way. 



23-12-201. Maintenance of right-of-way free from obstructions 
— Penalty. 

CASE NOTES 



Punitive Damages. 

Where railroad had allowed vegetation 
to remain overgrown at a crossing for 
more than 18 months prior to when a 
passenger in a garbage truck was severely 
injured in a collision with a train at that 
crossing, the railroad's noncompliance 
with this section regarding keeping the 
crossing clear could have resulted in li- 



ability for fines approaching up to 
$182,500 per year; hence, on appeal, the 
court held that punitive damages award 
was not excessive because it was compa- 
rable to such civil sanctions. Union Pac. 
R.R. Co. v. Barber, 356 Ark. 268, 149 
S.W.3d 325 (2004), cert, denied, Union 
Pac. R.R. v. Barber, 543 U.S. 940, 125 S. 
Ct. 320 (2004). 



23-12-203. Clearing right-of-way following derailment or wreck. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-12-206. Rail line abandonment process. 

(a) After an operator of a railroad within the State of Arkansas has 
filed a notice of rail line abandonment consistent with the Interstate 
Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, 



57 OPERATION AND MAINTENANCE OF RAILROADS 23-12-206 

and notice of the proposed rail line abandonment has been received by 
the Arkansas Economic Development Council, the council shall notify 
appropriate entities of the proposed abandonment. 

(b)(1) Within ten (10) working days of receipt of a notice to abandon 
a rail line by an operator of a railroad within the State of Arkansas, the 
council shall notify in writing: 

(A) All regional mobility authorities and all regional intermodal 
authorities that are directly affected by the proposed rail line 
abandonment within their areas of jurisdiction; and 

(B) If no regional mobility authorities or regional intermodal 
authorities exist within the region to be affected by the proposed rail 
line abandonment, all mayors and county judges who are directly 
affected by the proposed rail line abandonment within their areas of 
jurisdiction. 

(2) If there is an existing regional mobility authority or regional 
intermodal authority that is directly affected by a proposed rail line 
abandonment in their areas of jurisdiction, either or both of these 
authorities shall notify the council within ten (10) working days of the 
receipt of notice of the proposed rail line abandonment of their interest 
or lack of interest in obtaining or preserving the rail line proposed for 
abandonment. 

(3) If there is no existing regional mobility authority or regional 
intermodal authority in the area proposed for rail line abandonment, 
the affected mayors and county judges within the area of the proposed 
rail line abandonment shall notify the council within ten (10) working 
days of the receipt of notice of the proposed rail line abandonment of: 

(A) Their lack of interest in obtaining and preserving the rail line 
proposed for abandonment; 

(B) Their interest in obtaining or preserving through existing 
resources the rail line proposed for abandonment; or 

(C) Their interest in forming a new regional mobility authority or 
regional intermodal authority, part of whose purpose would be to 
obtain or preserve the rail line proposed for abandonment. 

(4) If the mayors or county judges, or both, in the areas directly 
affected by the proposed rail line abandonment respond indicating their 
intention to form a new regional mobility authority or regional inter- 
modal authority, part of the purpose of which would be to obtain or 
preserve the rail line proposed for abandonment, the mayors or county 
judges are allowed not more than one hundred twenty (120) days from 
the notice of the proposed rail line abandonment to form a regional 
mobility authority or regional intermodal authority to obtain or pre- 
serve the rail line proposed for abandonment. 

(5) Any costs associated with maintenance of the rail line proposed 
for abandonment shall be borne by the receiving party from the date of 
the notice of the proposed rail line abandonment until the ownership or 
preservation of the abandoned rail line has been determined. 



23-12-207 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



58 



History. Acts 2007, No. 747, § 1; 2009, 
No. 164, § 2. 
Amendments. The 2009 amendment, 



in (a), inserted "line" following "rail" in 
two places, and made a stylistic change. 



23-12-207. Transfer of ownership or responsibility of railroad 
right-of-way. 

(a) Any municipality, county, regional mobility authority, or regional 
intermodal authority may choose to operate or lease for operation any 
railroad right-of-way obtained or preserved from the abandonment of a 
rail line under § 23-12-206. 

(b) Any municipality, county, regional mobility authority, or regional 
intermodal authority acquiring ownership of any railroad right-of-way 
obtained or preserved from the abandonment of a rail line under 
§ 23-12-206 shall be responsible for any maintenance of the abandoned 
rail line. 

History. Acts 2007, No. 747, § 1. 

Subchapter 3 — Crossings and Switches 
23-12-302. Railroad switch connections to be permitted. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Subchapter 4 — Equipment — Safety Precautions 



SECTION. 

23-12-401. [Repealed.] 
23-12-403. [Repealed.] 

23-12-401. [Repealed.] 

Publisher's Notes. This section, con- 
cerning requirements of construction of 
engines, was repealed by Acts 2005, No. 
1994, § 565. The section was derived from 

23-12-403. [Repealed.] 

Publisher's Notes. This section, con- 
cerning requirements of construction of 
caboose cars, was repealed by Acts 2005 
No. 1994, § 566. The section was derived 



SECTION. 

23-12-405. 



[Repealed. 



Acts 1917, No. 75, §§ 1-3, p. 338; C. & M. 
Dig.,§§ 8587-8589; Pope's Dig., §§ 11165- 
11167; A.S.A. 1947, §§ 73-701 — 73-703. 



from Acts 1911, No. 418, §§ 1-4; C. & M. 
Dig., §§ 956-959; Pope's Dig., §§ 1160- 
1163; A.S.A. 1947, §§ 73-707 — 73-710. 



59 OPERATION AND MAINTENANCE OF RAILROADS 23-12-509 

23-12-405. [Repealed.] 

Publisher's Notes. This section, con- No. 1994, § 567. The section was derived 
cerning first aid kits and drinking water from Acts 1953, No. 130, §§ 1-4; A.S.A. 
requirements, was repealed by Acts 2005, 1947, §§ 73-741 — 73-744. 

23-12-410. Audible warning device to be sounded at crossing — 
Penalty and damages. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Regulated Industries, 24 U. Ark. 
Legislation, 2001 Arkansas General As- Little Rock L. Rev. 595. 

Subchapter 5 — Employees 

SECTION. SECTION. 

23-12-509. Limit on hours of service of 23-12-511. [Repealed.] 
trainmen on freight trains 23-12-513. [Repealed.] 
— Penalties for noncom- 
pliance — Liability for 
death or injury. 

23-12-509. Limit on hours of service of trainmen on freight 
trains — Penalties for noncompliance — Liability 
for death or injury. 

(a)(1) Any company owning or operating a railroad over thirty (30) 
miles in length in whole or in part within this state shall not permit or 
require any conductor, engineer, fireman, brakeman, or any trainman 
on any train, who has worked in his or her respective capacity for 
sixteen (16) consecutive hours, to again be required to go on duty or 
perform any work until he or she has had at least eight (8) hours' rest, 
except in cases of wrecks or washout. 

(2) However, at the expiration of the sixteen (16) hours' continuous 
service, the engineer and trainmen on any train which is at a distance 
not exceeding twenty-five (25) miles from any division terminal or 
destination point shall be permitted, if they so elect, to run the train 
into the division terminal or destination point. The additional service 
permitted under this subdivision (a)(2) shall not be so construed as to 
relieve any railroad corporation from liabilities incurred under subsec- 
tion (c) of this section. 

(b) Any railroad company or corporation knowingly violating any of 
the provisions of this section shall be liable to a penalty of not less than 
one hundred dollars ($100) nor more than two hundred dollars ($200) 
for the first offense. For any subsequent offense, it shall be liable for a 
penalty of not less than two hundred dollars ($200) nor more than three 
hundred dollars ($300). The monetary penalty shall be recovered in a 
civil action in the name of the state. 

(c) In addition to the penalty prescribed in subsection (b) of this 
section, any corporation violating the provisions of this section shall not 



23-12-511 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



60 



be permitted to interpose the defense of contributory negligence in the 
event of action being brought to recover for damages resulting from any 
accident which shall occur and by which injury shall be inflicted on any 
employee who may be detained in service more than sixteen (16) hours, 
notwithstanding that the negligence of the injured employee may have 
caused his or her own injury. Nor shall the defense of contributory 
negligence be interposed if the injury resulted in the death of the 
employee and the action is brought for the benefit of his or her next of 
kin. 

(d) The provisions of this section shall not apply to passenger trains. 



History. Acts 1903, No. 144, §§ 1-3, p. 
245; C. & M. Dig., §§ 7077-7079; Pope's 
Dig.,§§ 9059-9061; A.S.A. 1947, § 73-905 
— 73-907. 



Publisher's Notes. This section is be- 
ing set out to reflect a punctuation correc- 
tion in (a)(2). 



23-12-511. [Repealed.] 



Publisher's Notes. This section, con- 
cerning drinking water furnished to main- 
tenance-of-way employees — enforcement 
— penalties, was repealed by Acts 2005, 



No. 1994, § 568. The section was derived 
from Acts 1953, No. 284, §§ 1-3; A.S.A. 
1947, §§ 73-920 — 73-922. 



23-12-513. [Repealed.] 



Publisher's Notes. This section, con- 
cerning shelter requirements where rail- 
road equipment constructed or repaired, 
was repealed by Acts 2005, No. 1994, 



§ 569. The section was derived from Acts 
1905, No. 233, §§ 1, 2, p. 593; C. & M. 
Dig., §§ 7075, 7076; Pope's Dig., §§ 9057, 
9058; A.S.A. 1947, §§ 73-901, 73-902. 



Subchapter 6 — Train Service Generally 

23-12-603. Arkansas Transportation Commission [abolished] 
may require passenger trains to stop at all stations 
— Exception. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-12-605. Union passengers or freight depots. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 



pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 



61 



OPERATION AND MAINTENANCE OF RAILROADS 23-12-613 



functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 



This note is being set out to correct an 
agency name. 



23-12-608. Establishment, discontinuance, modification, etc., of 
service generally — Investigation of objects sought 
to be accomplished — Findings. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-12-609. Establishment, discontinuance, modification, etc., of 
service generally — Failure to comply with findings 
and mandate — Penalty. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-12-611. Discontinuance, dualization, or modification 
agency station — Petitions to reestablish. 



of 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-12-613. Receiver appointed upon attempt to abandon. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



23-12-801 PUBLIC UTILITIES AND REGULATED INDUSTRIES 62 

Highway and Transportation Depart- This note is being set out to correct an 
ment, respectively. See Publisher's Notes agency name, 
to Chapter 2, Subchapter 2 of this title. 

Subchapter 8 — Offenses Relating to Railroads 

SECTION. SECTION. 

23-12-801. [Repealed.] 23-12-806. [Repealed.] 

23-12-803. [Repealed.] 

23-12-801. [Repealed.] 

Publisher's Notes. This section, con- from Acts 1891, No. 17, § 5, p. 15; C. & M. 

cerning improper language in waiting Dig., § 965; Pope's Dig., § 1169; A.S.A. 

rooms or cars, was repealed by Acts 2005, 1947, § 73-1103. 
No. 1994, § 570. The section was derived 

23-12-803. [Repealed.] 

Publisher's Notes. This section, con- 45, § 3, p. 121; C. & M. Dig., § 8596; 

cerning use of track as highway, was re- Pope's Dig., § 11174; A.S.A. 1947, § 73- 

pealed by Acts 2005, No. 1994, § 571. The 1109. 
section was derived from Acts 1875, No. 

23-12-806. [Repealed.] 

Publisher's Notes. This section, con- 1994, § 572. The section was derived from 

cerning animals killed on railroad and the Acts 1961 (1st Ex. Sess.), No. 61, § 15; 

penalty for disposition of carcass without A.S.A. 1947, § 73-1102. 
notice, was repealed by Acts 2005, No. 

Subchapter 9 — Liability for Injuries 

SECTION. 

23-12-911. [Repealed.] 

23-12-911. [Repealed.] 

Publisher's Notes. This section, con- from Acts 1961 (1st Ex. Sess.), No. 61, 

cerning killing or injuring livestock, and §§ 11, 12; A.S.A. 1947, §§ 73-1010, 73- 

claims agent, was repealed by Acts 2005, 1011. 
No. 1994, § 573. The section was derived 

CHAPTER 13 
MOTOR CARRIERS 

subchapter. 

1. General Provisions. 

2. Motor Carrier Act. 

4. Passengers. [Repealed.] 

5. Motorcoach Carrier Incenttve Program. [Repealed.] 

6. Registration of Motor Carriers Engaged In Interstate Commerce. 



63 



MOTOR CARRIERS 
Subchapter 1 — General Provisions 



23-13-102 



SECTION. 

23-13-101. [Repealed.] 
23-13-101. [Repealed.] 

A.C.R.C. Notes. This section was also 
amended by Acts 2005, No. 1994, § 147. 
Pursuant to Arkansas Constitution, Ar- 
ticle 5, § 23, the repeal of this section by 
Acts 2005, No. 1691, § 1 superseded the 
subsequent amendment of this section by 
Acts 2005, No. 1994, § 147. 

Publisher's Notes. This section, con- 



cerning hours of duty and rest period of 
drivers, penalties, and exceptions, was 
repealed by Acts 2005, No. 1691, § 1. The 
section was derived from Acts 1931, No. 
157, §§ 1-3; Pope's Dig., §§ 3450-3452; 
A.S.A. 1947, §§ 73-1744 — 73-1746; Acts 
1993, No. 1212, § 1. 



23-13-102. Inspection of licensees — Employment of inspectors 
— Restraining operations. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Subchapter 2 — Motor Carrier Act 



SECTION. 

23-13-217. Enforcement officers. 

23-13-228. Certificate or permit for inter- 
state or foreign commerce 
— Disposition of funds. 

23-13-234. Operation without certificate 
or permit prohibited — 
Violation of terms, condi- 
tions, etc., of certificate, 
permit, or license prohib- 
ited. 

23-13-253, 23-13-254. [Repealed.] 

23-13-257. Violations by carriers, ship- 
pers, brokers, etc., or em- 



SECTION. 

ployees, agents, etc. — 
Penalties. 

23-13-258. Operation of motor vehicle 
while in possession of, con- 
suming, or under influence 
of any controlled sub- 
stance or intoxicating li- 
quor prohibited. 

23-13-262. Actions to recover penalties. 

23-13-264. Disposition of forfeited bonds 
and fines. 



Effective Dates. Acts 2003, No. 1117, 
§ 4: Apr. 7, 2003. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly of the State of Arkan- 
sas that requiring a motor carrier or bro- 
ker to report annually to the Arkansas 
Highway Commission creates an unjusti- 
fied burden on the motor carrier or broker 



operating in the State of Arkansas; that 
other provisions of Arkansas law require a 
motor carrier or broker to report annually 
to other authorities; and that this act is 
immediately necessary because these dual 
reporting requirements are duplicative 
and need to be eliminated to reduce the 
duplication of government efforts. There- 



23-13-203 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



64 



fore, an emergency is declared to exist and 
this act being immediately necessary for 
the preservation of the public peace, 
health and safety shall become effective 
on: (1) The date of its approval by the 
Governor; (2) If the bill is neither ap- 
proved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 

Acts 2003, No. 1121, § 2: Apr. 7, 2003. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that enforcement 
officers of the Arkansas Highway Commis- 
sion are required to enforce the federal 
motor carrier safety laws and the rules 
and regulations of the Arkansas Highway 
Commission with respect to motor carrier 
safety of operations and equipment; that 
the enforcement officers must have the 
authority to stop and require the drivers 
of commercial vehicles to exhibit and sub- 
mit for inspection all documents required 
to be carried in vehicles engaged in inter- 
state or intrastate commerce, including 
bills of lading, waybills, invoices, or other 
evidences of the character of the lading 
being transported in those vehicles; and 
that this act is immediately necessary 
because that authority is lacking in cur- 
rent law. Therefore, an emergency is de- 
clared to exist and this act being immedi- 
ately necessary for the preservation of the 
public peace, health and safety shall be- 



come effective on: (1) The date of its ap- 
proval by the Governor; (2) If the bill is 
neither approved nor vetoed by the Gov- 
ernor, the expiration of the period of time 
during which the Governor may veto the 
bill; or (3) If the bill is vetoed by the 
Governor and the veto is overridden, the 
date the last house overrides the veto." 

Acts 2007, No. 232, § 4: Mar. 9, 2007. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that in August 
2005 the United States Congress enacted 
the Uniform Carrier Registration Act of 
2005; that the Uniform Carrier Registra- 
tion Act of 2005 is to replace the single 
state registration program on or before 
January 1, 2007; that the deadline has 
passed and Arkansas has not yet had an 
opportunity to respond to this law due to 
its biennial legislative sessions; and that 
there is an immediate need for implemen- 
tation of the provisions of this act to 
ensure that Arkansas is in compliance 
with the Uniform Carrier Registration Act 
of 2005 to prevent the loss of funding. 
Therefore, an emergency is declared to 
exist and this act being immediately nec- 
essary for the preservation of the public 
peace, health, and safety shall become 
effective on: (1) The date of its approval by 
the Governor; (2) If the bill is neither 
approved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 



23-13-203. Definitions. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to reflect an 
omission. 



65 



MOTOR CARRIERS 
CASE NOTES 



23-13-206 



Analysis 

Common Carriers. 
Private Carrier. 

Common Carriers. 

Search of the cargo of defendant's com- 
mercial truck pursuant to the Arkansas 
Motor Carrier Act did not violate the 
Fourth Amendment because warrantless 
inspections of commercial trucks ad- 
vanced a substantial governmental inter- 
est and were necessary, and the Act pro- 
vided a permissible warrant substitute as 
its reach was limited to certain commer- 
cial vehicles under this section and §§ 23- 
13-204 and 23-13-206; it provided notice 
to commercial truck drivers of the possi- 
bility of a roadside inspection by a desig- 
nated enforcement officer under § 23-13- 
217; it limited the scope of the 
enforcement officers' inspections to an ex- 
amination solely for regulatory compli- 



ance under § 23-13-217(c)(l), (c)(1)(B); 
and although the Act did not designate 
specific times when the enforcement offic- 
ers could conduct inspections, such a limi- 
tation would render the entire inspection 
scheme unworkable and meaningless. 
United States v. Ruiz, 569 F.3d 355 (8th 
Cir. 2009). 

Private Carrier. 

Hotel van used to transport hotel guests 
to a nearby restaurant was a private car- 
rier within the meaning of subdivision 
(a)(18) of this section, not a common car- 
rier as defined in subdivision (a)(5), and 
the driver of the van had not breached the 
duty of ordinary care due passengers of a 
common carrier by parking the van away 
from the curb outside the restaurant or by 
failing to assist the guest in alighting from 
the van. Crenshaw v. Doubletree Corp., 81 
Ark. App. 157, 98 S.W.3d 836 (2003). 



23-13-204. Applicability of subchapter. 



CASE NOTES 



Constitutionality. 

Search of the cargo of defendant's com- 
mercial truck pursuant to the Arkansas 
Motor Carrier Act did not violate the 
Fourth Amendment because warrantless 
inspections of commercial trucks ad- 
vanced a substantial governmental inter- 
est and were necessary, and the Act pro- 
vided a permissible warrant substitute as 
its reach was limited to certain commer- 
cial vehicles under this section and §§ 23- 
13-203 and 23-13-206; it provided notice 
to commercial truck drivers of the possi- 



bility of a roadside inspection by a desig- 
nated enforcement officer under § 23-13- 
217; it limited the scope of the 
enforcement officers' inspections to an ex- 
amination solely for regulatory compli- 
ance under § 23-13-217(c)(l) and 
(c)(1)(B); and although the Act did not 
designate specific times when the enforce- 
ment officers could conduct inspections, 
such a limitation would render the entire 
inspection scheme unworkable and mean- 
ingless. United States v. Ruiz, 569 F.3d 
355 (8th Cir. 2009). 



23-13-206. Exemptions. 



CASE NOTES 



Interstate Commerce. 

Search of the cargo of defendant's com- 
mercial truck pursuant to the Arkansas 
Motor Carrier Act did not violate the 
Fourth Amendment because warrantless 
inspections of commercial trucks ad- 
vanced a substantial governmental inter- 
est and were necessary, and the Act pro- 
vided a permissible warrant substitute as 



its reach was limited to certain commer- 
cial vehicles under §§ 23-13-203, 23-13- 
204, and this section; it provided notice to 
commercial truck drivers of the possibility 
of a roadside inspection by a designated 
enforcement officer under § 23-13-217; it 
limited the scope of the enforcement offic- 
ers' inspections to an examination solely 
for regulatory compliance under § 23-13- 



23-13-207 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



66 



217(c)(1) and (c)(1)(B); and although the 
Act did not designate specific times when 
the enforcement officers could conduct in- 
spections, such a limitation would render 



the entire inspection scheme unworkable 
and meaningless. United States v. Ruiz, 
569 F.3d 355 (8th Cir. 2009). 



23-13-207. Regulation by Arkansas Transportation Commission 
[abolished]. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-208. General duties and powers of commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-209. Mandatory injunction — Requirement that commis- 
sion take jurisdiction. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-210. Hearings before commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



67 



MOTOR CARRIERS 



23-13-215 



23-13-211. Appeals — Entitlement. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-212. Appeals — Notice. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-213. Appeals 
peal. 



Stay of operating authority pending ap- 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-214. Appeals — Transcripts. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-215. Appeals — Filing fees. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 



and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 



23-13-217 PUBLIC UTILITIES AND REGULATED INDUSTRIES 68 

§§2, 3, abolished the board and the ment, respectively. See Publisher's Notes 

agency and transferred their powers, to Chapter 2, Subchapter 2 of this title, 
functions, and duties to the State High- This note is being set out to correct an 

way Commission and the Arkansas State agency name. 
Highway and Transportation Depart- 

23-13-217. Enforcement officers. 

(a) The State Highway Commission shall name and designate en- 
forcement officers charged with the duty of policing and enforcing the 
provisions of this subchapter. 

(b) The enforcement officers shall have authority to enforce § 27-50- 
308 and the Omnibus DWI Act, § 5-65-101 et seq., and shall have 
authority to make arrests for violation of any of the provisions of this 
subchapter, orders, rules, and regulations of the commission and to 
serve any notice, order, or subpoena issued by any court, the commis- 
sion, its secretary, or any employee authorized to issue same, and to this 
end shall have full authority with jurisdiction within the entire State of 
Arkansas. 

(c)(1) For the purpose of determining whether any motor vehicle or 
the operator of that vehicle is in compliance with the rules and 
regulations of the commission with respect to safety of operations and 
equipment or any other provision of this chapter, provided the operator 
is engaged in intrastate or interstate movements on the highways, 
roads, and streets of this state and the operator or vehicle is subject to 
the rules and regulations, the enforcement officers shall be authorized 
to: 

(A) Require the operator of the vehicle to stop, exhibit, and submit 
for inspection all documents required to be carried in that vehicle or 
by that operator pursuant to the regulations regarding the operator 
or operators of that vehicle, including, but not limited to, the operator 
or driver's duty status or hours-of-service records, bills of lading, 
waybills, invoices, or other evidences of the character of the lading 
being transported in the vehicle, as well as all records required to be 
carried by the regulations concerning that vehicle; 

(B) Inspect the contents of the vehicle for the purpose of comparing 
the contents with bills of lading, waybills, invoices, or other evidence 
of ownership or of transportation for compensation; and 

(C) Require the operator to submit the vehicle for a safety inspec- 
tion pursuant to the rules and regulations, if deemed necessary by 
the officers. 

(2) If the operator does not produce sufficient or adequate documents 
regarding his or her operation of the vehicle in conformance with the 
rules and regulations or is determined by the officers to be out of 
compliance with the rules and regulations, in addition to any other 
action that may be taken by the officers pursuant to the provisions of 
this subchapter, the officers shall be authorized to immediately place 
that operator out of service in accordance with the rules and regula- 
tions. 



69 



MOTOR CARRIERS 



23-13-218 



(3)(A) If the operator does not produce sufficient or adequate docu- 
ments regarding the vehicle in conformance with the rules and 
regulations, the vehicle is determined by the officers to be out of 
compliance with the rules and regulations. 

(B) If the operator refuses to submit the vehicle to a safety 
inspection in conformance with the rules and regulations or if the 
officer or officers determine the vehicle is unsafe for further operation 
following a safety inspection in accordance with the rules and 
regulations, in addition to any other action that may be taken by the 
officers pursuant to this subchapter, the officers shall be authorized to 
immediately place that vehicle out of service in conformance with the 
rules and regulations. 

(d) It shall be the further duty of the enforcement officers to impound 
any books, papers, bills of lading, waybills, and invoices that would 
indicate the transportation service being performed is in violation of 
this subchapter, subject to the further orders of the court having 
jurisdiction over the alleged violation. 

History. Acts 1955, No. 397, § 7; A.S.A. 
1947, § 73-1760; Acts 1989, No. 306, § 1; 
1997, No. 1026, § 1; 2003, No. 1121, § 1. 

CASE NOTES 



Inspection of Vehicles. 

Court did not err in denying the defen- 
dant's motion to suppress evidence where 
the defendant was stopped for a safety 
check and a drug dog alerted to drugs; the 
inspection officer had the right to search 
the truck for safety reasons and the driver 
admitted he had a radar detector. Wil- 
loughby v. State, 76 Ark. App. 329, 65 
S.W.3d 453 (2002). 

Search of the cargo of defendant's com- 
mercial truck pursuant to the Arkansas 
Motor Carrier Act did not violate the 
Fourth Amendment because warrantless 
inspections of commercial trucks ad- 
vanced a substantial governmental inter- 
est and were necessary, and the Act pro- 
vided a permissible warrant substitute as 
its reach was limited to certain commer- 



cial vehicles under §§ 23-13-203, 23-13- 
204, and 23-13-206; it provided notice to 
commercial truck drivers of the possibility 
of a roadside inspection by a designated 
enforcement officer under this section; it 
limited the scope of the enforcement offic- 
ers' inspections to an examination solely 
for regulatory compliance under subdivi- 
sions (c)(1) and (c)(1)(B) of this section; 
and although the Act did not designate 
specific times when the enforcement offic- 
ers could conduct inspections, such a limi- 
tation would render the entire inspection 
scheme unworkable and meaningless. 
United States v. Ruiz, 569 R3d 355 (8th 
Cir 2009). 

Cited: United States v. Belcher, 288 
R3d 1068 (8th Cir 2002). 



23-13-218. Certificate of public 
Requirement. 



convenience and necessity — 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



23-13-219 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



70 



Highway and Transportation Depart- This note is being set out to correct an 
ment, respectively. See Publisher's Notes agency name, 
to Chapter 2, Subchapter 2 of this title. 

23-13-219. Certificate of public convenience and necessity — 
Application and fees. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-220. Certificate of public convenience and necessity 
Issuance — Notice and hearing. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-221. Certificate of public convenience and necessity — 
Terms and conditions. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-222. Permits for contract carriers — Requirement. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



71 



MOTOR CARRIERS 



23-13-228 



23-13-223. Permits for contract carriers — Application and fees. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-224. Permits for contract carriers — Issuance. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-227. Certificates and permits — Security for the protec- 
tion of the public. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-228. Certificate or permit for interstate or foreign corn- 
Disposition of funds. 



merce 



It is declared unlawful for any motor carrier to use any of the public 
highways of this state for the transportation of persons or property in 
interstate commerce unless there is in force with respect to the carrier 
adequate surety for the protection of the public. 



History. Acts 1955, No. 397, § 25; 
1977, No. 468, § 1; A.S.A. 1947, § 73- 
1778; Acts 1993, No. 1027, § 1; 2007, No. 
232, § 3. 

A.C.R.C. Notes. Acts 2007, No. 232, 
§ 1, provided: "Findings. It is found by the 
General Assembly that the United States 
Congress has enacted the Unified Carrier 
Registration Act of 2005, Pub. L. No. 109- 
59, § 4301 et seq., replacing the single 



state registration system with the Unified 
Carrier Registration Agreement. In order 
to fully implement the requirements of 
the Unified Carrier Registration Act of 
2005 the amendments to the Arkansas 
Code in this act are necessary." 

Amendments. The 2007 amendment 
deleted the subsection (a) designation and 
deleted former (b), (c), (d), (e) and (f); and 
deleted "on file with the State Highway 



23-13-229 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



72 



Commission or the base state of the motor 
carrier" at the end of the section. 

23-13-229. Temporary authority. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-230. Brokers — Licenses 
protection of public. 



Rules and regulations for 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-232. Certificates, permits, and licenses — Transfer, assign- 
ment, etc. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-233. Certificates, permits, and licenses — Amendment, 
revocation, and suspension. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



73 MOTOR CARRIERS 23-13-234 

23-13-234. Operation without certificate or permit prohibited — 
Violation of terms, conditions, etc., of certificate, 
permit, or license prohibited. 

(a)(1) Any motor carrier using the highways of this state without 
first having obtained a permit or certificate from the Arkansas Trans- 
portation Commission [abolished], as provided by this subchapter, or 
who, being a holder thereof, violates any term, condition, or provision 
thereof shall be subject to a civil penalty to be collected by the 
commission, after notice and hearing, in an amount not less than one 
hundred dollars ($100) nor more than five hundred dollars ($500). 

(2) If the penalty is not paid within ten (10) days from the date of the 
order of the commission assessing the penalty, twenty-five percent 
(25%) thereof shall be added to the penalty. 

(3) Any amounts collected from the penalties provided for under this 
subsection shall be deposited by the commission into the State Treasury 
to the credit of the General Revenue Fund Account of the State 
Apportionment Fund. 

(b)(1) Any person required by this subchapter to obtain a certificate 
of convenience and necessity as a common carrier or a permit as a 
contract carrier and operates as such a carrier without doing so shall be 
guilty of a violation. Upon conviction, he or she shall be fined not less 
than one hundred dollars ($100) nor more than five hundred dollars 
($500) for the first such offense and not less than one hundred dollars 
($100) nor more than one thousand dollars ($1,000) for each subsequent 
offense. 

(2) Each day of the violation shall be a separate offense. 

(c)(1) Any person violating any other provision or any term or 
condition of any certificate, permit, or license, except as otherwise 
provided in § 23-13-258, shall be guilty of a violation and upon 
conviction shall be fined not more than one hundred dollars ($100) for 
the first offense and not more than five hundred dollars ($500) for any 
subsequent offense. 

(2) Each day of the violation shall constitute a separate offense. 

(3) In addition thereto, the person shall be subject to the civil 
penalties provided in subsection (a) of this section. 

History. Acts 1955, No. 397, § 22; Acts 1989 (1st Ex. Sess.), No. 67, § 23, 

1971, No. 532, § 1; 1983, No. 565, § 5; and Acts 1989 (1st Ex. Sess.), No. 153, 

A.S.A. 1947, § 73-1775; Acts 2005, No. §§ 2, 3, abolished the board and the 

1994, § 148. agency and transferred their powers, 

Publisher's Notes. The Arkansas functions, and duties to the State High- 
Transportation Commission, referred to in way Commission and the Arkansas State 
this section, was abolished and replaced Highway and Transportation Depart- 
by the Transportation Regulatory Board ment> res p e ctively See Publisher's Notes 
and the Transportation Safety Agency to Chapter 2 Subchapter 2 of this title, 
pursuant to Acts 1987, No. 572. However, 



23-13-238 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



74 



23-13-238. Common carriers — Rates, fares, rules, regulations, 
etc. — Complaints. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-239. Common carriers — Rates, fares, rules, regulations, 
etc. — Determination by commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-240. Common carriers — Rates, charges, rules, regula- 
tions, etc. — Establishment and division of joint 
rates, charges, etc. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-241. Common carriers — Schedules, rules, etc., affecting 
rates, fares, etc. — Hearings — Suspension proceed- 
ings. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



75 



MOTOR CARRIERS 



23-13-246 



23-13-242. Common carriers — Rates, charges, rules, regula- 
tions, etc. — Factors of reasonableness or justness. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-244. Tariffs of common carriers by motor vehicle. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-245. Contract carriers — Schedule of minimum rates and 
charges, rules, regulations, and practices — Re- 
quirement — Filing, posting, and publishing re- 
quired. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-246. Contract carriers — Schedule of minimum rates and 
charges, rules, regulations, and practices — Adher- 
ence to schedule required — Exceptions. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-249 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



76 



23-13-249. Contract carriers — Schedule of rules, etc., affecting 
rates, fares, etc. — Hearings — Suspension proceed- 
ings. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-250. Contract carriers — Schedule of minimum rates and 
charges, rules, regulations, and practices — Estab- 
lishment by Arkansas Transportation Commission 
[abolished]. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-251. Collection of rates and charges. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-252. Receipts or bills of lading. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



77 MOTOR CARRIERS 23-13-258 

23-13-253, 23-13-254. [Repealed.] 

Publisher's Notes. These sections, 23-13-253. Acts 1955, No. 397, § 20; 

concerning reports by motor carriers and A.S.A. 1947, § 73-1773. 

failure to file said reports, were repealed 23-13-254. Acts 1955, No. 397, § 22; 

by Acts 2003, No. 1117, §§ 1, 2. The sec- A.S.A. 1947, § 73-1775. 
tions were derived from the following 
sources: 

23-13-257. Violations by carriers, shippers, brokers, etc., or em- 
ployees, agents, etc. — Penalties. 

Any person, whether a carrier, shipper, consignee, or broker, or any 
officer, employee, agent, or representative thereof who shall knowingly 
offer, grant, or give or solicit, accept, or receive any rebate, concession, 
or discrimination in violation of any provision of this subchapter; who 
by means of any false statement or representation, or by the use of any 
false or fictitious bill, bill of lading, receipt, voucher, roll, account, claim, 
certificate, affidavit, deposition, lease, or bill of sale, or by any other 
means or device shall knowingly assist, suffer, or permit any persons, 
natural or artificial, to obtain transportation of passengers or property 
subject to this subchapter for less than the applicable fare, rate, or 
charge; who shall knowingly by any such means or otherwise fraudu- 
lently seek to evade or defeat regulation as in this subchapter is 
provided for motor carriers or brokers; or who shall violate any of the 
regulations, including safety regulations, prescribed or hereafter pre- 
scribed by the State Highway Commission pursuant to the provisions of 
Title 23 of this Code, shall be guilty of a violation. Upon conviction, that 
person, unless otherwise provided in this chapter, shall be fined not 
more than five hundred dollars ($500) for the first offense and not less 
than five hundred dollars ($500) nor more than one thousand dollars 
($1,000) for any subsequent offense. 

History. Acts 1955, No. 397, § 22; 
A.S.A. 1947, § 73-1775; Acts 1993, No. 
1023, § 1; 2005, No. 1994, § 455. 

23-13-258. Operation of motor vehicle while in possession of, 
consuming, or under influence of any controlled 
substance or intoxicating liquor prohibited. 

(a)(1) Any person operating or being in physical control of a motor 
vehicle, which motor vehicle is susceptible at the time of such operation 
or physical control to any regulations of the State Highway Commission 
regarding the safety of operation and equipment of that motor vehicle, 
who commits any of the following acts shall be guilty of a violation and 
upon conviction for the first offense shall be subject to a fine of not less 
than two hundred dollars ($200) nor more than one thousand dollars 
($1,000): 



23-13-259 PUBLIC UTILITIES AND REGULATED INDUSTRIES 78 

(A) Operating or being in physical control of such a motor vehicle 
if he or she possesses, is under the influence of, or is using any 
controlled substance; 

(B) Operating or being in physical control of such a motor vehicle 
if he or she possesses, is under the influence of, or is using any other 
substance that renders him or her incapable of safely operating a 
motor vehicle; or 

(C)(i) Consumption of or possession of an intoxicating liquor, 

regardless of its alcoholic content, or being under the influence of an 

intoxicating liquor while in physical control of such a motor vehicle. 

(ii) However, no person shall be considered in possession of an 

intoxicating liquor solely on the basis that an intoxicating liquor or 

beverage is manifested and being transported as part of a shipment. 

(2) Upon the second and subsequent convictions, that person shall be 

subject to a fine of not less than five hundred dollars ($500) nor more 

than one thousand dollars ($1,000). 

(b) As used in this section, "controlled substance" shall have the 
same meaning ascribed to that term in the Uniform Controlled Sub- 
stances Act, §§ 5-64-101 — 5-64-608, and the regulations issued 
pursuant to that act. 

(c) Nothing in this section is intended to abrogate any of the 
provisions of the Omnibus DWI Act, § 5-65-101 et seq., and any person 
violating any of the provisions of subsection (a) of this section who may 
be charged with a violation of the Omnibus DWI Act, § 5-65-101 et seq., 
shall be so charged with a violation of that act rather than with a 
violation of this section. 

History. Acts 1955, No. 397, § 22; 1775; Acts 1993, No. 1022, § 1; 2005, No. 
1971, No. 532, § 1; A.S.A. 1947, § 73- 1994, § 149. 

23-13-259. Lessor to unauthorized persons deemed motor car- 
rier. 

Publisher's Notes. The Arkansas agency and transferred their powers, 

Transportation Commission, referred to in functions, and duties to the State High- 

this section, was abolished and replaced way Commission and the Arkansas State 

by the Transportation Regulatory Board Highway and Transportation Depart- 

and the Transportation Safety Agency men t, respectively. See Publisher's Notes 

pursuant to Acts 1987, No. 572. However, to Chapter 2, Subchapter 2 of this title. 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, This note is being set out to corre ct an 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency name. 



23-13-261. Injunction against violation of subchapter, rules, 
regulations, etc., or terms and conditions of certifi- 
cate, permit, or license. 

Publisher's Notes. The Arkansas and the Transportation Safety Agency 

Transportation Commission, referred to in pursuant to Acts 1987, No. 572. However, 

this section, was abolished and replaced Acts 1989 (1st Ex. Sess.), No. 67, § 23, 

by the Transportation Regulatory Board and Acts 1989 (1st Ex. Sess.), No. 153, 



79 MOTOR CARRIERS 23-13-301 

§§ 2, 3, abolished the board and the ment, respectively. See Publisher's Notes 

agency and transferred their powers, to Chapter 2, Subchapter 2 of this title, 
functions, and duties to the State High- This note is being set out to correct an 

way Commission and the Arkansas State agency name. 
Highway and Transportation Depart- 

23-13-262. Actions to recover penalties. 

(a) An action to recover a penalty under §§ 23-13-234 and 23-13-257 
— 23-13-264 or to enforce the powers of the Arkansas Transportation 
Commission [abolished] under this subchapter or any other law may be 
brought in any circuit court in this state in the name of the State of 
Arkansas, on relation to the commission, and shall be commenced and 
prosecuted to final judgment by the counsel to the commission. 

(b) In any such action, all penalties incurred up to the time of 
commencing the action may be sued for and recovered therein. 

(c) The commencement of an action to recover a penalty shall not be 
or be held to be a waiver of the right to recover any other penalty. 

History. Acts 1955, No. 397, § 22; Acts 1989 (1st Ex. Sess.), No. 67, § 23, 

1983, No. 565, § 5; A.S.A. 1947, § 73- and Acts 1989 (1st Ex. Sess.), No. 153, 

1775; Acts 2003, No. 1117, § 3. §§ 2, 3, abolished the board and the 

Publisher's Notes. The Arkansas agency and transferred their powers, 

Transportation Commission, referred to in functions, and duties to the State High- 

this section, was abolished and replaced way Commission and the Arkansas State 

by the Transportation Regulatory Board Highway and Transportation Depart- 

and the Transportation Safety Agency ment, respectively. See Publisher's Notes 

pursuant to Acts 1987, No. 572. However, to Chapter 2, Subchapter 2 of this title. 

23-13-264. Disposition of forfeited bonds and fines. 

One-half (V2) of the amount of forfeited bonds and one-half (V2) of the 
fines collected for violations of this subchapter shall be remitted by the 
tenth day of each month to the Administration of Justice Funds Section 
of the Office of Administrative Services of the Department of Finance 
and Administration on a form provided by that office for deposit into the 
General Revenue Fund Account of the State Apportionment Fund. 

History. Acts 1955, No. 397, § 22; 
1983, No. 565, § 6; A.S.A. 1947, § 73- 
1775; Acts 2005, No. 1934, § 15. 

Subchapter 3 — Complaint Proceedings 

23-13-301. Definitions. 

Publisher's Notes. The Arkansas Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
Transportation Commission, referred to in and Acts 1989 (1st Ex. Sess.), No. 153, 
this section, was abolished and replaced §§ 2, 3, abolished the board and the 
by the Transportation Regulatory Board agency and transferred their powers, 
and the Transportation Safety Agency functions, and duties to the State High- 
pursuant to Acts 1987, No. 572. However, way Commission and the Arkansas State 



23-13-302 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



80 



Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 



This note is being set out to correct an 
agency name. 



23-13-302. Authority of Arkansas Transportation Commission 
[abolished]. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-303. Commencement of action before the commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-304. Service of process and notices. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-305. Time and place of hearing. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



81 



MOTOR CARRIERS 



23-13-310 



23-13-306. Findings and order of commission — Time for taking 
effect. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-307. Revocation of license, permit, or certificate. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-308. Appeal to Circuit Court of Pulaski County. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-309. Order or subpoena of commission enforceable upon 
application to court. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-13-310. Witness fees and costs. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 



by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



23-13-401 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



82 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



Subchapter 4 — Passengers 



SECTION. 

23-13-401 



23-13-406. [Repealed.] 



23-13-401 — 23-13-406. [Repealed.] 



Publisher's Notes. This subchapter 
was repealed by Acts 2005, No. 1994, 
§ 574. The subchapter was derived from 
the following sources: 

23-13-401. Acts 1959, No. 81, § 4 
A.S.A. 1947, § 73-1783. 

23-13-402. Acts 1959, No. 81, § 4 
A.S.A. 1947, § 73-1783. 

23-13-403. Acts 1959, No. 81, § 1 
A.S.A. 1947, § 73-1780. 



23-13-404. Acts 1959, No. 81, §§ 1, 2 
A.S.A. 1947, §§ 73-1780, 73-1781. 

23-13-405. Acts 1959, No. 81, § 3 
A.S.A. 1947, § 73-1782. 

23-13-406. Acts 1937, No. 124, § 5 
Pope's Dig., § 6925; Acts 1943, No. 180, 
§ 5; 1973, No. 253, § 2;A.S.A. 1947, § 73- 
1751. 



Subchapter 5 — Motorcoach Carrier Incentive Program 



SECTION. 

23-13-501 



23-13-506. [Repealed.] 



Effective Dates. Acts 2009, No. 1330, 
§ 35: July 1, 2009. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly, that the Constitution 
of the State of Arkansas prohibits the 
appropriation of funds for more than a one 
(1) year period; that the effectiveness of 
this Act on July 1, 2009 is essential to the 
operation of the agency for which the 
appropriations in this Act are provided, 
and that in the event of an extension of 



the Regular Session, the delay in the 
effective date of this Act beyond July 1, 
2009 could work irreparable harm upon 
the proper administration and provision 
of essential governmental programs. 
Therefore, an emergency is hereby de- 
clared to exist and this Act being neces- 
sary for the immediate preservation of the 
public peace, health and safety shall be in 
full force and effect from and after July 1, 
2009." 



23-13-501 — 23-13-506. [Repealed.] 



Publisher's Notes. Former §§ 23-13- 
501 — 23-13-505, concerning the legisla- 
tive determination, definitions, and appli- 
cation for and amount of incentive 
payments in the Motorcoach Carriers In- 
centive Act of 1997, were repealed by Acts 



1999, No. 233, § 7. They were derived 
from the following sources: 

23-13-501. Acts 1997, No. 1187, § 1. 

23-13-502. Acts 1997, No. 1187, § 2. 

23-13-503. Acts 1997, No. 1187, § 3. 

23-13-504. Acts 1997, No. 1187, § 4. 



83 



MOTOR CARRIERS 



23-13-601 



23-13-505. Acts 1997, No. 1187, § 5. 

This subchapter, concerning the Motor- 
coach Incentive Act of 1999, was repealed 
by Acts 2009, No. 1330, § 32. The sub- 
chapter was derived from the following 
sources: 

23-13-501. Acts 1999, No. 233, § 1. 



23-13-502. Acts 1999, No. 233, § 2. 
23-13-503. Acts 1999, No. 233, § 3. 
23-13-504. Acts 1999, No. 233, § 4. 
23-13-505. Acts 1999, No. 233, § 5. 
23-13-506. Acts 1997, No. 1187, § 
1999, No. 233, § 6. 



Subchapter 6 — Registration of Motor Carriers Engaged In 
Interstate Commerce 



SECTION. 

23-13-601. 
23-13-602. 

23-13-603. 



Definitions. 

Registration with a base state 
required. 

Implementation and adminis- 
tration duties. 



SECTION. 

23-13-604. Registration fees. 
23-13-605. Violation — Enforcement — 
Penalties. 



A.C.R.C. Notes. Acts 2007, No. 232, 
§ 1, provided: "Findings. It is found by the 
General Assembly that the United States 
Congress has enacted the Unified Carrier 
Registration Act of 2005, Pub. L. No. 109- 
59, § 4301 et seq., replacing the single 
state registration system with the Unified 
Carrier Registration Agreement. In order 
to fully implement the requirements of 
the Unified Carrier Registration Act of 
2005 the amendments to the Arkansas 
Code in this act are necessary." 

Effective Dates. Acts 2007, No. 232, 
§ 4: Mar. 9, 2007. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly of the State of Arkan- 
sas that in August 2005 the United States 
Congress enacted the Uniform Carrier 
Registration Act of 2005; that the Uniform 
Carrier Registration Act of 2005 is to 
replace the single state registration pro- 



gram on or before January 1, 2007; that 
the deadline has passed and Arkansas has 
not yet had an opportunity to respond to 
this law due to its biennial legislative 
sessions; and that there is an immediate 
need for implementation of the provisions 
of this act to ensure that Arkansas is in 
compliance with the Uniform Carrier Reg- 
istration Act of 2005 to prevent the loss of 
funding. Therefore, an emergency is de- 
clared to exist and this act being immedi- 
ately necessary for the preservation of the 
public peace, health, and safety shall be- 
come effective on: (1) The date of its ap- 
proval by the Governor; (2) If the bill is 
neither approved nor vetoed by the Gov- 
ernor, the expiration of the period of time 
during which the Governor may veto the 
bill; or (3) If the bill is vetoed by the 
Governor and the veto is overridden, the 
date the last house overrides the veto." 



23-13-601. Definitions. 

As used in this subchapter: 

(1) "Broker" means a person other than a motor carrier or an 
employee or agent of a motor carrier that as a principal or an agent 
sells, offers for sale, negotiates for, or holds itself out by solicitation, 
advertisement, or otherwise as selling, providing, or arranging for 
transportation by motor carrier for compensation; 

(2) "Commercial motor vehicle" means a self-propelled or towed 
vehicle used on the highways in commerce principally to transport 
passengers or cargo if the vehicle: 



23-13-602 PUBLIC UTILITIES AND REGULATED INDUSTRIES 84 

(A) Has a gross vehicle weight rating or gross vehicle weight of at 
least ten thousand one pounds (10,001 lbs.), whichever is greater; 

(B) Is designed to transport more than ten (10) passengers includ- 
ing the driver; or 

(C) Is used in transporting material found by the Secretary of 
Transportation to be hazardous under 49 U.S.C. § 5103, as it existed 
on January 1, 2007, and transported in a quantity requiring placard- 
ing under regulations prescribed by the secretary under 49 U.S.C. 
§ 5103, as it existed on January 1, 2007; 

(3) "Freight forwarder" means a person holding itself out to the 
general public other than as a pipeline, rail, motor, or water carrier to 
provide transportation of property for compensation and in the ordinary 
course of its business: 

(A) Assembles and consolidates, or provides for assembling and 
consolidating, shipments and performs or provides for break-bulk 
and distribution operations of the shipments; 

(B) Assumes responsibility for the transportation from the place of 
receipt to the place of destination; and 

(C)(i) Uses for any part of the transportation a carrier subject to 
jurisdiction under 49 U.S.C. § 10101 et seq., as it existed on January 
1, 2007. 

(ii) "Freight forwarder" does not include a person using transpor- 
tation of an air carrier subject to 49 U.S.C. § 40101 et seq., as it 
existed on January 1, 2007; 

(4) "Leasing company" means a lessor that is engaged in the business 
of leasing or renting for compensation motor vehicles without drivers to 
a motor carrier, motor private carrier, or freight forwarder; 

(5) "Motor carrier" means a person providing commercial motor 
vehicle transportation for compensation; and 

(6) "Motor private carrier" means a person other than a motor carrier 
transporting property by commercial motor vehicle when: 

(A) The transportation is interstate commerce as provided in 49 
U.S.C. § 13501, as it existed on January 1, 2007; 

(B) The person is the owner, lessee, or bailee of the property being 
transported; and 

(C) The property is being transported for sale, lease, rent, or 
bailment or to further a commercial enterprise. 

History. Acts 2007, No. 232, § 2. 

23-13-602. Registration with a base state required. 

Foreign and domestic motor carriers, motor private carriers, leasing 
companies, brokers, and freight forwarders shall not operate in inter- 
state commerce in this state without: 

(1) Being registered with a base state; and 

(2) Paying all fees as required under the Unified Carrier Registra- 
tion Act of 2005, Pub. L. No. 109-59, § 4301 et seq. 



85 MOTOR CARRIERS 23-13-604 

History. Acts 2007, No. 232, § 2; 2009, leted "as in effect on January 1, 2007" 

No. 164, § 3. following "et seq." in (2), and made related 

Amendments. The 2009 amendment changes, 
added the subsection designations, de- 

23-13-603. Implementation and administration duties. 

(a) The Director of the Department of Finance and Administration 
has oversight over the implementation and administration of the 
Unified Carrier Registration Act of 2005, Pub. L. No. 109-59, § 4301 et 
seq. 

(b) The director is vested with the following powers and has the 
following duties: 

(1) To promulgate such regulations as are necessary to participate in 
the Unified Carrier Registration Agreement; 

(2) To collect and remit such fees as determined by the Unified 
Carrier Registration Plan Board of Directors; 

(3) To cooperate with the various law enforcement agencies to ensure 
compliance with and enforcement of the Unified Carrier Registration 
Act of 2005, Pub. L. No. 109-59, § 4301 et seq., and regulations; and 

(4) To do all things necessary, pursuant to the state and federal law, 
to enable this state to participate in the Unified Carrier Registration 
Agreement. 

History. Acts 2007, No. 232, § 2; 2009, 1, 2007" following "et seq." and made a 

No. 164, § 4. related change and a minor stylistic 

Amendments. The 2009 amendment, change, 
in (b)(3), deleted "as in effect on January 

23-13-604. Registration fees. 

(a) Any fees collected by the Director of the Department of Finance 
and Administration under this section shall be classified as special 
revenues and shall be deposited into the State Treasury. 

(b) Upon receipt of the funds and if not prohibited by the Unified 
Carrier Registration Act of 2005, Pub. L. No. 109-59, § 4301 et seq., the 
Treasurer of State shall: 

(1) Deduct three percent (3%) of the funds as a charge by the state for 
its services as specified in this section; and 

(2) Credit the three percent (3%) to the Constitutional Officers Fund 
and the State Central Services Fund, as defined in the Revenue 
Classification Law, § 19-6-101 et seq., or to any successor State 
Treasury fund or funds established by law to replace the Constitutional 
Officers Fund and the State Central Services Fund. 

(c) The net amount of the fees collected by the director under this 
section shall be: 

(1) Transferred by the Treasurer of State on the last business day of 
each month to the State Highway and Transportation Department 
Fund; and 

(2) Distributed and expended in the manner directed by the Unified 
Carrier Registration Act of 2005, Pub. L. No. 109-59, § 4301 et seq., for 



23-13-605 PUBLIC UTILITIES AND REGULATED INDUSTRIES 86 

the payment of expenses incurred by the Arkansas State Highway and 
Transportation Department for motor carrier law enforcement and 
safety operations. 

History. Acts 2007, No. 232, § 2; 2009, effect on January 1, 2007" following "et 

No. 164, § 5. seq." in the introductory language of (b); 

Amendments. The 2009 amendment inserted "§ 4301 et seq." in (c)(2); and 

redesignated (b) and (c); deleted "as in made related changes. 

23-13-605. Violation — Enforcement — Penalties. 

(a)(1) A person who is subject to the Unified Carrier Registration Act 
of 2005, Pub. L. No. 109-59, § 4301 et seq., and who uses the highways 
of this state without first registering in accordance with this subchapter 
is guilty of a violation. 

(2) The Department of Arkansas State Police, the Arkansas Highway 
Police Division of the Arkansas State Highway and Transportation 
Department, and local authorities may enforce this subsection. 

(b) A person who is found guilty or enters a plea of guilty or nolo 
contendere under this section shall be ordered to pay a fine of: 

(1) For a first offense, not less than one hundred dollars ($100) or 
more than five hundred dollars ($500); and 

(2) For a second or subsequent offense, not less than one hundred 
dollars ($100) or more than one thousand dollars ($1,000). 

(c)(1) Fifty percent (50%) of the amount of the fines imposed and 
collected under this section shall be remitted by the tenth day of each 
month to the Administration of Justice Funds Section of the Office of 
Administrative Services of the Department of Finance and Administra- 
tion on a form provided by that office for deposit into the General 
Revenue Fund Account of the State Apportionment Fund. 

(2) Fifty percent (50%) of the amount of the fines imposed and 
collected under this section shall remain in the jurisdiction in which the 
violation occurred. 

History. Acts 2007, No. 232, § 2; 2009, effect on January 1, 2007" following "et 
No. 164, § 6. seq." in (a)(1), and substituted "this sub- 
Amendments. The 2009 amendment section" for "subsection (a) of this section" 
redesignated the section; deleted "as in in (a)(2); and made related changes. 

CHAPTER 14 
AIR COMMERCE REGULATIONS 

SECTION. 

23-14-104. Penalties. 
23-14-102. Definitions. 

Publisher's Notes. The Arkansas and the Transportation Safety Agency 

Transportation Commission, referred to in pursuant to Acts 1987, No. 572. However, 

this section, was abolished and replaced Acts 1989 (1st Ex. Sess.), No. 67, § 23, 

by the Transportation Regulatory Board and Acts 1989 (1st Ex. Sess.), No. 153, 



87 



AIR COMMERCE REGULATIONS 



23-14-106 



§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 



ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-103. Exemptions. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-104. Penalties. 

(a) Every person, including any officer, agent, or employee of a 
corporation, who violates any provision of this chapter or fails to comply 
with any order, decision, or regulation issued by the Arkansas Trans- 
portation Commission [abolished] shall be guilty of a Class A misde- 
meanor. 

(b) Each day's violation of this chapter or any of the terms or 
conditions of any such order, decision, or regulation shall constitute a 
separate offense. 



History. Acts 1945, No. 252, § 18; 
A.S.A. 1947, § 74-419; Acts 2005, No. 
1994, § 326. 

Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 



way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

Amendments. The 2005 amendment 
inserted the subsection (a) and (b) desig- 
nations; in (a), deleted "procures, aids, or 
abets in the violation of following "who 
violates" and substituted "Class A misde- 
meanor" for "misdemeanor and upon con- 
viction shall be punishable by a fine of not 
to exceed one thousand dollars ($1,000) or 
by imprisonment in the county jail not to 
exceed one (1) year, or both." 



23-14-106. Control, supervision, and regulation by Arkansas 
Transportation Commission [abolished]. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



23-14-107 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



88 



Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 



This note is being set out to correct an 
agency name. 



23-14-107. Duties and powers of commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-108. Pecuniary interest by commissioners or employees 
prohibited. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 

23-14-109. Certificates required. 

Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-110. Certificates — Application — Notice and hearings. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



89 



AIR COMMERCE REGULATIONS 



23-14-116 



23-14-111. Temporary certificates. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-112. Certificates — Security for the protection of the 
public required. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-113. Certificates — Evidence of compliance with other 
laws required. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-114. Issuance of certificates, 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-116. Certificates — Transfer or lease. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 



by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



23-14-117 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



90 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-117. Certificates 
tion. 



Modification, suspension, or revoca- 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-118. Rates and service generally. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-119. Extension of service. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-120. Abandonment or discontinuance of service. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



91 



AIR COMMERCE REGULATIONS 



23-14-125 



23-14-121. Tariffs. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-122. Free or reduced-rate transportation, 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-123. Change in tariff, charge, rule, regulation, etc. — 
Approval by commission. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-124. Regulation of securities and liens — Liability of 
state. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-125. Accounts, records, and reports. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 



by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 



23-14-126 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



92 



Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 



Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-126. Access to and examination of property and records. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-14-128. Fees. 

Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



CHAPTER 15 
PIPELINE COMPANIES 

subchapter. 
2. Arkansas Natural Gas Pipeline Safety Act of 1971. 

Subchapter 1 — General Provisions 

23-15-101. Common carriers — Eminent domain. 

CASE NOTES 



Constitutionality. 

This section was constitutional as ap- 
plied and did not violate Ark. Const. Art. 
2, § 22, where it granted a private gas 
company the right of eminent domain to 
construct and maintain a natural gas 
pipeline over private land and the gas 
company operated the pipeline as a com- 
mon carrier, giving the public the equal 
right to use the pipeline. Linder v. Ark. 



Midstream Gas Servs. Corp., 2010 Ark. 
117, — S.W.3d — (2010). 

This section did not violate Ark. Const. 
Art. 2, § 22 because it had not granted the 
power of eminent domain to a pipeline 
company for a private use; the pipeline 
was available to multiple natural gas pro- 
ducers and was to be operated by the 
pipeline company as a common carrier so 
that the public had equal rights to its use. 



93 PIPELINE COMPANIES 23-15-203 

Smith v. Ark. Midstream Gas Servs. 
Corp., 2010 Ark. 256, — S.W.3d — (2010). 

23-15-103. Gas rates. 

CASE NOTES 

Cited: Brandon v. Arkansas W. Gas 
Co., 76 Ark. App. 201, 61 S.W.3d 193 
(2001). 

23-15-105. Pipeline companies authorized to transport ammo- 
nia and other components of fertilizer. 

Publisher's Notes. The Arkansas agency and transferred their powers, 

Transportation Commission, referred to in functions, and duties to the State High- 

this section, was abolished and replaced way Commission and the Arkansas State 

by the Transportation Regulatory Board Highway and Transportation Depart- 

and the Transportation Safety Agency men t, respectively. See Publisher's Notes 

pursuant to Acts 1987, No. 572. However, to Chapter 2, Subchapter 2 of this title. 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, This note is being set out to correct an 

and Acts 1989 (1st Ex. Sess.), No. 153, agency name . 
§§2, 3, abolished the board and the 

Subchapter 2 — Arkansas Natural Gas Pipeline Safety Act of 1971 

SECTION. SECTION. 

23-15-203. Definitions. 23-15-211. Civil penalty — Compromise 

23-15-205. Safety standards. — Proceedings. 

23-15-209. Compliance and waiver. 

23-15-203. Definitions. 

As used in this subchapter, unless the context otherwise requires: 

(1) "Commission" means the Arkansas Public Service Commission; 

(2) "Gas" means natural gas, flammable gas, or gas which is toxic or 
corrosive; 

(3) "Interstate transmission facilities" means pipeline facilities used 
in the transportation of gas which are subject to the jurisdiction of the 
Federal Energy Regulatory Commission under the Natural Gas Act; 

(4) "Municipality" means a city, county, or any other political subdi- 
vision of a state; 

(5) "Person" means an individual, firm, joint venture, partnership, 
corporation, association, state, municipality, cooperative association, or 
joint-stock association and includes any trustee, receiver, assignee, or 
personal representative thereof; 

(6) "Petroleum refinery" means an industrial or manufacturing fa- 
cility or plant primarily engaged in producing gasoline, kerosene, 
distillate fuel oils, residual fuel oils, lubricants, or other products 
through the processing of petroleum crude oil that is subject to: 



23-15-203 PUBLIC UTILITIES AND REGULATED INDUSTRIES 94 

(A) The Environmental Protection Agency Standards of Perfor- 
mance for New Stationary Sources set forth in 40 C.F.R. Part 60, 
Subpart GGG or successor regulations; 

(B) The Environmental Protection Agency Chemical Accident Pre- 
vention Provisions set forth in 40 C.F.R. Part 68, Subparts A, B, D, E, 
F, G, and H or successor regulations; and 

(C) The Occupational Safety and Health Administration Regula- 
tions governing process safety management of highly hazardous 
chemicals set forth in 29 C.F.R. § 1910.119 or successor regulations; 

(7) "Pipeline facilities" includes, without limitation, pipe, pipe rights- 
of-way, and any equipment facility or building used in the transporta- 
tion of gas or the treatment of gas during the course of transportation 
of gas, but rights-of-way as used in this subchapter does not authorize 
the commission to prescribe the location or routing of any pipeline 
facility; 

(8) "Production facilities" includes, without limitation, piping or 
equipment used in the production, extraction, recovery, lifting, stabili- 
zation, separation, or treatment of natural gas or associated storage or 
measurement from the wellhead to a meter where the gas is transferred 
to a custodian other than the well operator for gathering or transport, 
commonly known as a "custodial transfer meter"; 

(9) "Production process" means the extraction of gas from the geo- 
logical source of supply to the surface of the earth, thence through the 
lines and equipment used to treat, compress, and measure the gas 
between the wellhead and the meter where it is either sold or delivered 
to a custodian other than the well operator for gathering and transport 
to a place of sale, sometimes called a "custodial transfer meter"; and 

(10)(A) "Transportation of gas" means the gathering, transmission, 
or distribution of gas by pipeline or the storage of gas in or through 
any pipeline facilities other than interstate transmission facilities as 
denned in this section. 

(B) "Transportation of gas" shall not include production facilities 
or the production process. 

(C) "Transportation of gas" shall include the gathering, transmis- 
sion, or distribution of natural gas containing one hundred (100) or 
more parts per million of hydrogen sulfide from the custodial transfer 
meter through any pipeline, rural or nonrural, to and through any 
pipeline facility that removes hydrogen sulfide, except that portion of 
such a pipeline or pipeline facility that is located within the fenced 
boundary of a petroleum refinery. 

History. Acts 1971, No. 285, § 2; A.S.A. inserted "of gas"; deleted (10)(B)(ii), sub- 

1947, § 73-1909; Acts 1991, No. 793, § 2; stituted "'Transportation of gas' shall" for 

1999, No. 1048, § 1; 2001, No. 153, § 1; "However, it shall specifically" in (10)(C); 

2009, No. 452, § 2. and made related and minor stylistic 

Amendments. The 2009 amendment, changes, 
in (10(A), substituted "the" for "its" and 



95 PIPELINE COMPANIES 23-15-209 

23-15-205. Safety standards. 

(a) The Arkansas Public Service Commission by order pursuant to 
the provisions of the Arkansas Administrative Procedure Act, § 25-15- 
201 et seq., for purposes of this subchapter only may promulgate, 
amend, enforce, waive, and repeal minimum safety standards for the 
transportation of gas and pipeline facilities. 

(b)(1) These standards may apply to the design, installation, inspec- 
tion, testing, construction, extension, operation, replacement, and 
maintenance of pipeline facilities. 

(2) The state safety standards shall be practicable and designed to 
meet the needs for pipeline safety. 

(c) In prescribing the safety standards, the commission shall con- 
sider: 

(1) Relevant available pipeline safety data; 

(2) Whether such standards are appropriate for the particular type of 
pipeline transportation; 

(3) The reasonableness of any proposed standard; and 

(4) The extent to which such standards will contribute to the public 
safety 

(d) Safety regulations promulgated for gas pipeline facilities or the 
transportation of gas shall be consistent with federal law and with rules 
and regulations promulgated under authority of the Natural Gas 
Pipeline Safety Act of 1968, Pub. L. No. 90-481, as amended. 

(e) Standards affecting the design, installation, construction, initial 
inspection, and initial testing shall not be applicable to pipeline 
facilities in existence on the date such standards are adopted. 

(f) Whenever the commission finds a particular facility to be hazard- 
ous to life or property, it shall be empowered to require the person 
operating the facility to cease such operation or to take steps necessary 
to remove the hazards. 

History. Acts 1971, No. 285, § 3; A.S.A. 
1947, § 73-1910; Acts 1991, No. 793, § 3; 
1999, No. 1048, § 2. 

23-15-209. Compliance and waiver. 

(a) Each person who engages in the transportation of gas or who 
owns or operates pipeline facilities shall: 

(1) At all times after the date any applicable safety standard estab- 
lished under this subchapter takes effect, comply with the require- 
ments of such standard; 

(2) File and comply with a plan of inspection and maintenance 
required by § 23-15-208; and 

(3) Permit access to or copying of records, make reports or provide 
information, and permit entry or inspection, as required under §§ 23- 
15-206 and 23-15-207. 



23-15-211 PUBLIC UTILITIES AND REGULATED INDUSTRIES 96 

(b) The Arkansas Public Service Commission, pursuant to the provi- 
sions of the Natural Gas Pipeline Safety Act of 1968, Pub. L. No. 90-481, 
may waive compliance with a safety standard. 

History. Acts 1971, No. 285, § 5; A.S.A. 
1947, § 73-1912. 

23-15-211. Civil penalty — Compromise — Proceedings. 

(a) Any person who violates any provision of § 23-15-209 or any 
regulation issued under this subchapter shall be subject to a civil 
penalty not to exceed one hundred thousand dollars ($100,000) for each 
violation for each day that the violation persists. However, the maxi- 
mum civil penalty shall not exceed one million dollars ($1,000,000) for 
any related series of violations. 

(b) Any such civil penalty may be compromised by the Arkansas 
Public Service Commission. 

(c) In determining the amount of the penalty or the amount agreed 
upon in compromise, the appropriateness of the penalty to the size of 
the business of the person charged, the gravity of the violation, and the 
good faith of the person charged in attempting to achieve compliance, 
after notification of a violation, shall be considered. 

(d) Proceedings under this section shall be subject to the Arkansas 
Administrative Procedure Act, § 25-15-201 et seq. 

(e) Any penalty imposed under this section, if not promptly paid to 
the commission, shall be recovered with interest thereon from the date 
of the order in a civil action brought by the commission. 

(f) Any civil penalty collected and imposed under this section shall be 
paid to the Secretary of the Arkansas Public Service Commission. 

History. Acts 1971, No. 285, §§ 6, 8; 1913, 73-1915; Acts 1991, No. 793, § 4; 
1975, No. 877, § 2; A.S.A. 1947, §§ 73- 1995, No. 713, § 1; 2005, No. 539, § 1. 

CHAPTER 16 

MISCELLANEOUS PROVISIONS RELATING TO 

CARRIERS 

subchapter. 
2. Employee Bonds. 

4. Arkansas Lifeline Individual Verification Effort Corporation Act. 

5. Safe Transportation of Railroad Employees by Contract Carriers Act. 

Subchapter 1 — General Provisions 

23-16-101. Definitions. 

Publisher's Notes. The Arkansas and the Transportation Safety Agency 

Transportation Commission, referred to in pursuant to Acts 1987, No. 572. However, 

this section, was abolished and replaced Acts 1989 (1st Ex. Sess.), No. 67, § 23, 

by the Transportation Regulatory Board and Acts 1989 (1st Ex. Sess.), No. 153, 



97 



CARRIERS— MISCELLANEOUS PROVISIONS 



23-16-201 



§§2, 3, abolished the board and the 
agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 



ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-16-103. Annual certified statement of gross revenue. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-16-104. Annual fee collected from carriers. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§ 2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



23-16-106. Record of cost of operation kept. 



Publisher's Notes. The Arkansas 
Transportation Commission, referred to in 
this section, was abolished and replaced 
by the Transportation Regulatory Board 
and the Transportation Safety Agency 
pursuant to Acts 1987, No. 572. However, 
Acts 1989 (1st Ex. Sess.), No. 67, § 23, 
and Acts 1989 (1st Ex. Sess.), No. 153, 
§§2, 3, abolished the board and the 



agency and transferred their powers, 
functions, and duties to the State High- 
way Commission and the Arkansas State 
Highway and Transportation Depart- 
ment, respectively. See Publisher's Notes 
to Chapter 2, Subchapter 2 of this title. 

This note is being set out to correct an 
agency name. 



SECTION. 

23-16-201. Penalty. 



Subchapter 2 — Employee Bonds 



23-16-201. Penalty. 

Any person, officer, manager, company, corporation, association, or 
firm who violates any of the provisions of this subchapter shall be guilty 
of a Class A misdemeanor. 



History. Acts 1911, No. 166, § 4; C. & 
M. Dig., § 7124; Pope's Dig., § 9110; 



A.S.A. 1947, § 73-2104; Acts 2005, No. 
1994, § 229. 



23-16-401 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



98 



Subchapter 4 — Arkansas Lifeline Individual Verification Effort 

Corporation Act 



SECTION. 

23-16-401. Title. 

23-16-402. Definitions. 

23-16-403. Arkansas Lifeline Individual 
Verification Effort Corpo- 
ration — Creation — 
Board of directors. 

23-16-404. Board of directors — Atten- 
dance at meetings re- 
quired. 

23-16-405. Assessment on eligible tele- 
communications carriers. 

23-16-401. Title. 



SECTION. 

23-16-406. Option to participate or cease 
participation. 

23-16-407. Powers and duties of corpora- 
tion. 

23-16-408. Staff— Real property — Debt. 

23-16-409. Corporate offices. 

23-16-410. Annual audit. 

23-16-411. Articles of incorporation. 

23-16-412. Purchase of telecommunica- 
tions services. 

23-16-413. Annual report. 



This subchapter shall be known and may be cited as the "Arkansas 
Lifeline Individual Verification Effort Corporation Act". 

History. Acts 2005, No. 2289, § 1. 

23-16-402. Definitions. 

As used in this subchapter: 

(1) "Eligible telecommunications carrier" has the same meaning as 
provided in § 23-17-403; 

(2) "Lifeline Assistance Program" means the federally mandated 
Lifeline Assistance Program that provides certain discounts on monthly 
service for qualified telephone subscribers; and 

(3) "Link Up America" means the federally mandated Link Up 
America program through the Federal Communications Commission 
that helps qualified low-income consumers to connect or hook up to the 
telephone network. 

History. Acts 2005, No. 2289, § 1. 

23-16-403. Arkansas Lifeline Individual Verification Effort Cor- 
poration — Creation — Board of directors. 

(a) There is created the Arkansas Lifeline Individual Verification 
Effort Corporation. 

(b) The corporation shall be governed by a seven-member board of 
directors appointed by the Governor as follows: 

(1) Three (3) board members shall be consumers; and 

(2) Four (4) board members shall be representatives of eligible 
telecommunications carriers. 

(c) The Governor shall choose representatives of eligible telecommu- 
nications carriers from a list of three (3) names for each position 
submitted by representatives of eligible telecommunications carriers. 



99 CARRIERS— MISCELLANEOUS PROVISIONS 23-16-404 

(d) The initial appointments shall be for terms that will result in two 
(2) board members serving a one-year term, two (2) board members 
serving a two-year term, and three (3) board members serving a 
three-year term. All successors shall serve three-year terms. 

(e) The Governor shall designate one (1) of the board members to 
preside over the initial meeting of the board, at which meeting the 
board shall elect a president, a secretary, and such other officers as it 
deems appropriate. 

(f) Members of the board shall serve without compensation but may 
be reimbursed for reasonable expenses. However, no corporate money 
shall be used for out-of-state travel expenses. 

(g) All vacancies on the board shall be filled in the same manner as 
the original appointments. 

History. Acts 2005, No. 2289, § 1. 

23-16-404. Board of directors — Attendance at meetings re- 
quired. 

(a) In order to ensure broad representation and a quorum, all 

members of the Board of Directors of the Arkansas Lifeline Individual 

Verification Effort Corporation have a responsibility to attend all 

regular or special meetings of the board. 

(b)(1) Aboard member shall be subject to removal from the board if 

the member fails to present to the Governor a satisfactory excuse for his 

or her absence. 
(2) Unexcused absences from three (3) successive regular meetings 

without attending any intermediary called special meetings shall 

constitute sufficient cause for removal. 
(c) Removal of board members shall be in accordance with the 

following: 
(1)(A) Within thirty (30) days after each regular board meeting, the 
secretary of the board shall give written notice to the Governor of any 
member who has been absent from three (3) successive regular 
meetings without attending any intermediary called special meet- 
ings. 

(B) The secretary's notice to the Governor shall include a copy of 
all meeting notices and attendance records for the past year. 

(C) Failure by the secretary to submit the notices and documen- 
tation required by this subchapter shall be considered cause for 
removal by the Governor in accordance with the procedures set forth 
at § 25-17-210; 

(2) Within sixty (60) days after receiving the notice and supporting 
documentation from the secretary, the Governor shall notify the board 
member in writing of the Governor's intent to remove the member for 
cause. This notice shall suffice for the notice required in § 25-17-210(a); 

(3) Within twenty (20) days after the date of the Governor's notice, 
the board member may request an excused absence as provided by this 



23-16-405 PUBLIC UTILITIES AND REGULATED INDUSTRIES 100 

subchapter or may file notice with the Governor's office that the 
member disputes the attendance records and the reasons therefor; 

(4) The Governor shall grant an excuse for illness of the member 
when verified by a written sworn statement by the attending physician 
or other proper excuse as determined by the Governor; and 

(5) If no rebuttal is received or other adequate documentation 
submitted within twenty (20) days after the date of the Governor's 
notice, the board member may be removed in accordance with the 
provisions set forth in § 25-17-210. 

(d) Any board member referred to the Governor because of excessive 
absences under the provisions of this subchapter shall not be entitled to 
any expense reimbursement for travel to or attendance at any subse- 
quent meeting until the board receives notification from the Governor 
that the member has been excused for the absences. 

History. Acts 2005, No. 2289, § 1. 

23-16-405. Assessment on eligible telecommunications carriers. 

(a)(1) The Board of Directors of the Arkansas Lifeline Individual 
Verification Effort Corporation shall levy assessments on all eligible 
telecommunications carriers participating in the verification program 
not to exceed ten cents (10c0 per subject access line per month in order 
to fund the services provided by the Arkansas Lifeline Individual 
Verification Effort Corporation. 

(2) Participation in the verification program shall be available only 
for eligible telecommunications carriers having a customer access base 
of fifteen thousand (15,000) or fewer. 

(b) The board may adjust the assessment in January of each year, 
but at no time shall the assessment exceed ten cents (10e0 per subject 
access line per month. 

(c) The assessment shall not be levied on more than one hundred 
(100) access lines at any single customer location. 

(d)(1) The assessment may be collected by an eligible telecommuni- 
cations carrier from its customers and transmitted monthly to the 
board, and the board shall deposit the assessment into a financial 
institution authorized to accept public funds. 

(2) The assessment shall appear on the bills of customers as a 
combined total with the assessment by the Arkansas Deaf and Hearing 
Impaired Telecommunications Services Corporation under § 25-29- 
103. The item on the bill shall identify both assessments by name. 

(e) The assessments levied by the corporation shall not be considered 
a tax and shall not be affected by any laws of this state governing 
taxation, nor shall the assessments be subject to any state or local tax 
or franchise fee. 

History. Acts 2005, No. 2289, § 1. 



101 CARRIERS— MISCELLANEOUS PROVISIONS 23-16-407 

23-16-406. Option to participate or cease participation. 

(a) An eligible telecommunications carrier may elect not to partici- 
pate under this subchapter without the need for approval by the 
Arkansas Lifeline Individual Verification Effort Corporation if the 
eligible telecommunications carrier files notice with the corporation 
within one hundred twenty (120) days after August 12, 2005. 

(b)(1) If approved by the corporation: 

(A) A participating eligible telecommunications carrier may cease 
participation under this subchapter; and 

(B) A nonparticipating eligible telecommunications carrier may 
begin participation under this subchapter. 

(2) Applications to participate or cease participation shall be ac- 
cepted at times approved by the Board of Directors of the Arkansas 
Lifeline Individual Verification Effort Corporation. 

History. Acts 2005, No. 2289, § 1. 

23-16-407. Powers and duties of corporation. 

(a)(1) The Arkansas Lifeline Individual Verification Effort Corpora- 
tion shall provide services to verify eligibility under the Lifeline 
Assistance Program for individuals for whom other governmental 
entities do not verify the data. If another governmental entity provides 
verification, the corporation shall not duplicate the verification. 

(2) The corporation may provide services to verify eligibility under 
the Link Up America program for individuals for whom other govern- 
mental entities do not verify the data. If another governmental entity 
provides verification, the corporation shall not duplicate the verifica- 
tion. 

(b) The corporation shall: 

(1) Have perpetual succession as a body politic and corporate, adopt 
bylaws for the regulation of the affairs and the conduct of its business, 
and prescribe rules, regulations, and policies in connection with the 
performance of its functions and duties; 

(2) Adopt an official seal and alter it at pleasure; 

(3) Sue and be sued in its own name and plead and be impleaded; 

(4) Make and execute contracts and other instruments necessary or 
convenient in the exercise of the powers and functions of the authority 
under this subchapter, including contracts with persons, firms, corpo- 
rations, and others; 

(5) Purchase insurance; and 

(6) Do all other acts and things necessary, convenient, or desirable to 
carry out the purposes of this subchapter and to exercise the powers 
granted to it by this subchapter. 

History. Acts 2005, No. 2289, § 1. 



23-16-408 PUBLIC UTILITIES AND REGULATED INDUSTRIES 102 

23-16-408. Staff — Real property — Debt. 

(a) The Arkansas Lifeline Individual Verification Effort Corporation 
shall not employ any person as a salaried employee but shall rely upon 
volunteers and professional services obtained by contract. 

(b) No corporate asset may be used to purchase or lease any real 
property, nor is the corporation authorized to incur any indebtedness. 

History. Acts 2005, No. 2289, § 1. 

23-16-409. Corporate offices. 

The Arkansas Lifeline Individual Verification Effort Corporation may 
maintain an office at such location as it deems suitable. 

History. Acts 2005, No. 2289, § 1. 

23-16-410. Annual audit. 

The Arkansas Lifeline Individual Verification Effort Corporation 
shall be audited annually in accordance with accounting principles 
generally accepted in the United States and file a copy of the audit with 
the Legislative Joint Auditing Committee and the Arkansas Public 
Service Commission. 

History. Acts 2005, No. 2289, § 1. 

23-16-411. Articles of incorporation. 

Within thirty (30) days after the first meeting of the Board of 
Directors of the Arkansas Lifeline Individual Verification Effort Corpo- 
ration, the board shall cause articles of incorporation to be filed with the 
Secretary of State. 

History. Acts 2005, No. 2289, § 1. 

23-16-412. Purchase of telecommunications services. 

The purchase of verification services by the Arkansas Lifeline Indi- 
vidual Verification Effort Corporation shall be by competitive bid using 
procedures substantially similar to the Arkansas Procurement Law, 
§ 19-11-201 et seq. 

History. Acts 2005, No. 2289, § 1. 

23-16-413. Annual report. 

The Board of Directors of the Arkansas Lifeline Individual Verifica- 
tion Effort Corporation shall transmit an annual report of its activities 
to the Legislative Council, the Governor, and the Arkansas Public 
Service Commission. The annual report shall be filed by March 31 of 
each year. 



103 



CARRIERS— MISCELLANEOUS PROVISIONS 



23-16-502 



History. Acts 2005, No. 2289, § 1. 

Subchapter 5 — Safe Transportation of Railroad Employees by 
Contract Carriers Act 



SECTION. 

23-16-501. Title. 

23-16-502. Definitions. 

23-16-503. Driver qualification file. 

23-16-504. Driver disqualification 

limitations. 

23-16-505. Driver testing. 

23-16-506. Vehicle inspection. 



SECTION. 

23-16-507. Maintenance and repair pro- 
gram. 
23-16-508. Access to facilities and 
and records. 

23-16-509. Liability protection. 

23-16-510. Penalties. 

23-16-511. Right of railroad to contract. 



Effective Dates. Acts 2009, No. 243, 
§ 2, Feb. 26, 2009. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly of the State of Arkan- 
sas that safety issues have arisen where 
the contract carrier that transports rail- 
road employees have operated under less 
than ideal circumstances; that by estab- 
lishing standards in state law that are 
consistent with federal law, railroad em- 
ployees will be provided transportation 
that complies with recognized safety stan- 
dards; and that this act is immediately 
necessary to ensure the safe transporta- 



tion of railroad employees by contract car- 
riers. Therefore, an emergency is declared 
to exist and this act being immediately 
necessary for the preservation of the pub- 
lic peace, health, and safety shall become 
effective on: (1) The date of its approval by 
the Governor; (2) If the bill is neither 
approved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 



23-16-501. Title. 

This subchapter shall be known as and may be cited as the "Safe 
Transportation of Railroad Employees by Contract Carriers Act". 

History. Acts 2009, No. 243, § 1. 

23-16-502. Definitions. 

As used in this subchapter: 

(1) "Contract carrier" means a passenger contract carrier that for 
compensation transports railroad employees with a vehicle designed or 
used to transport eight (8) persons or less, including the driver; and 

(2)(A) "On-duty time" means all time at a terminal, facility, or other 

property of a contract carrier or on any public property waiting to be 

dispatched. 
(B) "On-duty time" includes time spent inspecting, servicing, or 

conditioning the vehicle, unless the driver has been relieved from 

duty by the contract carrier. 



History. Acts 2009, No. 243, § 1. 



23-16-503 PUBLIC UTILITIES AND REGULATED INDUSTRIES 104 

23-16-503. Driver qualification file. 

(a)(1) A contract carrier shall maintain a driver qualification file for 
each driver it employs. 

(2) The driver qualification file may be combined with the personnel 
file of the employee. 

(b) The driver qualification file shall include: 

(1) A certificate of physical examination conducted by a physician 
every two (2) years that certifies the physical ability of the driver to 
operate a commercial motor vehicle; 

(2) Documentation that establishes that the driver's driving record 
has been reviewed at least one (1) time per year; 

(3) Documentation related to the driver's violation of motor vehicle 
laws or ordinances, if applicable; 

(4) Other documentation related to the driver's qualification or 
ability to drive a motor vehicle; 

(5) The driver's application for employment as provided under 49 
C.F.R. § 391.21; 

(6) Responses from previous employers, if required by the current 
employer; and 

(7) A certificate of the driver's road test or a copy of the current 
driver's license. 

History. Acts 2009, No. 243, § 1. 

23-16-504. Driver disqualification and limitations. 

(a) A driver is disqualified from driving for a contract carrier under 
this subchapter if the driver has committed two (2) or more serious 
traffic violations under § 27-16-401 within a three-year period. 

(b)(1) A contract carrier shall not allow or require a driver to drive or 
remain on duty for more than: 

(A) Ten (10) hours after eight (8) consecutive hours off-duty; 

(B) Fifteen (15) hours of combined on-duty time and drive time 
since last obtaining eight (8) consecutive hours of off-duty time; or 

(C) Seventy (70) hours of on-duty and drive time in any period of 
eight (8) consecutive days. 

(2) After twenty-four (24) hours off-duty, a driver begins a new seven 
(7) consecutive day period and on-duty time is reset to zero (0). 

(3) A transport vehicle driver who encounters an emergency and 
cannot, because of that emergency, safely complete a transportation 
assignment within the ten-hour maximum driving time permitted 
under this section may drive and be permitted or required to drive a 
transport motor vehicle for not more than two (2) additional hours in 
order to complete that transportation assignment or to reach a place 
offering safety for the occupants of the transport motor vehicle and 
security for the transport motor vehicle if the transportation assign- 
ment reasonably could have been completed within the ten-hour period 
absent the emergency. 



105 CARRIERS— MISCELLANEOUS PROVISIONS 23-16-505 

(c) A contract carrier shall maintain and retain for a period of six (6) 
months accurate time records that show: 

(1) The time the driver reports for duty each day; 

(2) The total number of hours of on-duty time for each driver for each 
day; 

(3) The time the driver is released from duty each day; and 

(4) The total number of hours driven each day. 

History. Acts 2009, No. 243, § 1. 

23-16-505. Driver testing. 

(a)(1) Before a driver performs any duties for a contract carrier, the 
driver shall undergo testing for alcohol and controlled substances as 
provided under 49 C.F.R. § 40 and 49 C.F.R. § 382, as in effect on 
January 1, 2009. 

(2) A driver is qualified to drive for a contract carrier if: 

(A) The alcohol test result under subdivision (a)(1) of this section 
indicates an alcohol concentration of zero (0); and 

(B) The controlled substances test result from the medical review 
officer as defined under 49 C.F.R. § 40.3, as in effect on January 1, 
2009, indicates a verified negative test result. 

(3) A driver is disqualified from driving for a contract carrier if: 

(A) The alcohol test result and the controlled substances test 
result are not in compliance with subdivision (a)(2) of this section; 

(B) The driver refuses to provide a specimen for an alcohol test 
result or the controlled substances test result, or both; or 

(C) The driver submits an adulterated specimen, a diluted positive 
specimen, or a substituted specimen on an alcohol test result or the 
controlled substances test result that is performed. 

(b)(1) As soon as practicable after an accident involving a motor 
vehicle owned or operated by a contract carrier, the contract carrier 
shall test each surviving driver for alcohol and controlled substances if: 

(A) The accident involved the loss of human life; or 

(B) The driver received a citation for a moving traffic violation 
arising from the accident and the accident involved: 

(i) Bodily injury to a person who immediately received medical 

treatment after the accident; or 
(ii) Disabling damage that required the motor vehicle to be towed 

from the accident scene to one (1) or more motor vehicles as a result 

of the accident. 

(2) If alcohol testing and controlled substances testing cannot be 
completed as soon as possible but no later than thirty-two (32) hours 
after the accident, the records shall be submitted to the Arkansas 
Highway Police Division of the Arkansas State Highway and Transpor- 
tation Department. 

(c)(1) A common carrier or the employer of a driver of a common 
carrier shall maintain records of the alcohol testing and controlled 
substances testing of drivers for five (5) years. 



23-16-506 PUBLIC UTILITIES AND REGULATED INDUSTRIES 106 

(2) The records shall be maintained in a secure location. 
History. Acts 2009, No. 243, § 1. 

23-16-506. Vehicle inspection. 

(a) A contract carrier shall inspect or cause to be inspected a motor 
vehicle that it operates for passenger transportation. 

(b)(1) If a contract carrier uses a commercial motor vehicle for 
passenger transportation, the contract carrier shall perform an inspec- 
tion on the commercial motor vehicle and its components at least one (1) 
time in every twelve-month period in compliance with the rules 
promulgated by the United States Department of Transportation as 
provided under 49 C.F.R. § 396.17, Appendix G. 

(2) The inspection under this subsection shall be performed by an 
individual who is qualified to perform the inspection as prescribed in 49 
C.F.R. § 396.19, as in effect on January 1, 2009. 

(c) A contract carrier shall require each of its drivers to complete a 
written motor vehicle report upon completion of each day's work on the 
motor vehicle that the driver operated as prescribed under 49 C.F.R. 
§ 396.11, as in effect on January 1, 2009. 

History. Acts 2009, No. 243, § 1. 

23-16-507. Maintenance and repair program. 

(a) A contract carrier shall establish a maintenance and repair 
program to include at least weekly inspections under this section. 

(b) A contract carrier's maintenance and repair program shall in- 
clude checking parts and accessories for safety and proper operation at 
all times, including the items under subsection (c) of this section, and 
overall cleanliness of the motor vehicle. 

(c) A motor vehicle used by a contract carrier shall have: 

(1) Tires with sufficient tread as prescribed under 49 C.F.R. 
§ 393.75, as in effect on January 1, 2009; 

(2) A spare tire that is fully inflated; 

(3) A secured location for personal baggage, including proper re- 
straints; 

(4) Fully-operational seatbelts for all passenger seats; 

(5) If the weather requires it, traction devices, studs, or chains; 

(6) A heater and air conditioner that is properly working with 
properly working fans; and 

(7) An emergency road kit that contains at least a tire inflating 
aerosol can, flares or reflective triangles, jumper cables, and a fire 
extinguisher. 

(d) A motor vehicle shall not be operated in a condition that is likely 
to cause an accident or mechanical breakdown. 

(e)(1) A contract carrier shall maintain records for its maintenance 
and repair program for each motor vehicle. 
(2) The records shall include: 



107 CARRIERS— MISCELLANEOUS PROVISIONS 23-16-510 

(A) Identifying information for the motor vehicle to include the 
vehicle identification number, make, year manufactured, and com- 
pany identification number if one is provided; 

(B) Owner information if the contract carrier is not the owner of 
the vehicle; and 

(C) The history of inspections, repairs, and maintenance that 
describe the activity and the date the activity was performed. 
(3)(A) Except as provided under subdivision (e)(3)(B) of this section, 
the records under this subsection shall be maintained by the contract 
carrier at its place of business for one (1) year. 

(B) If the motor vehicle leaves the contract carrier's control, the 

records under this subsection shall be maintained by the contract 

carrier at its place of business for six (6) months. 

(f) A contract carrier and its officers, drivers, agents, and employees 

who are concerned with the inspection or maintenance of motor vehicles 

shall comply with and be knowledgeable of the contract carrier's 

maintenance and repair program under this section. 

History. Acts 2009, No. 243, § 1. 

23-16-508. Access to facilities and records. 

A contract carrier shall allow an employee of the Arkansas Highway 
Police Division of the Arkansas State Highway and Transportation 
Department or its designee access to: 

(1) A facility to determine compliance with this subchapter; and 

(2) Records or information related to an accident investigation under 
this subchapter. 

History. Acts 2009, No. 243, § 1. 

23-16-509. Liability protection. 

A contract carrier or a third party that contracts on behalf of a 
railroad shall obtain and maintain an insurance policy of five million 
dollars ($5,000,000) for each motor vehicle that transports railroad 
employees. 

History. Acts 2009, No. 243, § 1; 2009, on behalf of a railroad" and substituted 
No. 637, § 1. "($5,000,000)" for "(5,000,000)." 

Amendments. The 2009 amendment 
inserted "or a third party that contracts 

23-16-510. Penalties. 

(a)(1) A person who knowingly violates a provision of this subchapter 
is liable to the state for a civil penalty not to exceed one thousand 
dollars ($1,000) for each violation. 

(2) Each day that a violation continues is a separate offense. 



23-16-511 PUBLIC UTILITIES AND REGULATED INDUSTRIES 108 

(b) The Arkansas Highway Police Division of the Arkansas State 
Highway and Transportation Department shall assess penalties for 
violations under this subchapter by written notice to the violator. 

(c) To determine the amount of the penalty, the department or its 
designee shall evaluate: 

(1) The nature, circumstances, extent, and gravity of the violation; 

(2) The degree of culpability, history of prior offenses, ability to pay, 
and effect on the ability to continue to do business of the person found 
to have committed a violation; and 

(3) Other circumstances as justice may require. 

History. Acts 2009, No. 243, § 1. 

23-16-511. Right of railroad to contract. 

(a) This subchapter is not intended to limit and shall not be con- 
strued as limiting the right of a railroad to contract with a contract 
carrier that certifies to the railroad that it is in compliance with the 
provisions of this subchapter or any applicable federal requirements. 

(b) The railroad is entitled to rely on a contract carrier's certification 
that it is operating in compliance with this subchapter without further 
inquiry. 

History. Acts 2009, No. 243, § 1. 

CHAPTER 17 
TELEPHONE AND TELEGRAPH COMPANIES 

subchapter 

1. General Provisions. 

2. Rural Telecommunications Cooperatives. 
4. Telecommunications Regulatory Reform. 

Subchapter 1 — General Provisions 

SECTION. SECTION. 

23-17-106. Priority of dispatch of mes- 23-17-109. [Repealed.] 

sages — Confidentiality. 23-17-111. [Repealed.] 

23-17-107. Interception of message — In- 23-17-119. Surcharges to provide tele- 
juring equipment — Pen- communications for deaf 

alty. and hearing impaired. 



Effective Dates. Acts 2011, No. 173, Telecommunications Equipment Fund, 

§ 3: July 1, 2011. Emergency clause pro- and that the optimal time to implement 

vided: "It is found and determined by the this surcharge is at the beginning of the 

General Assembly of the State of Arkan- state's fiscal year. Therefore, an emer- 

sas that this act provides for the creation gency is declared to exist and this act 

of a surcharge upon commercial mobile being necessary for the preservation of the 

radio service providers per subject tele- public peace, health, and safety shall be- 

phone number per month to support the come effective on July 1, 2011." 



109 TELEPHONE AND TELEGRAPH COMPANIES 23-17-107 

23-17-101. Right to construct, operate, and maintain lines — 
Damages for occupation of property. 

CASE NOTES 

Cited: International Paper Co. v. MCI 
Worldcom Network Servs., 202 F. Supp. 
2d 895 (W.D. Ark. 2002). 

23-17-106. Priority of dispatch of messages — Confidentiality. 

(a)(1) In consideration of the right-of-way over the public property 
conceded in §§ 23-17-101 — 23-17-108 and 23-17-113, every telephone 
corporation in the case of war, insurrection, or civil commotion of any 
kind and for the arrest of criminals shall give immediate dispatch at the 
usual rates of charge to any message connected therewith of any officer 
of the state or of the United States. 

(2) Any officer or agent of a telephone company who fails or refuses 
to carry out the provisions of the preceding subsection is guilty of a 
misdemeanor. 

(b)(1) All other messages, including those received from other tele- 
phone companies, shall be transmitted in order of their delivery, 
correctly and without unreasonable delay, and shall be strictly confi- 
dential. However, arrangements may be made with the publishers of 
newspapers for the transmission of intelligence of general and public 
interest. 

(2) Any officer or agent of a telephone company who willfully violates 
the provisions of this subsection is guilty of a Class A misdemeanor. 

(3) The telephone company so violating this section is liable in 
damages to the party aggrieved. 

History. Acts 1885, No. 107, §§ 5-8, p. Amendments. The 2005 amendment 
176; C. & M. Dig., §§ 10242-10245; Pope's deleted "telegraph or" preceding "tele- 
Dig., §§ 14251-14254; A.S.A. 1947, §§ 73- phone" throughout this section; and in- 
1806 — 73-1809; Acts 2005, No. 1994, serted "Class A" preceding "misdemeanor" 
§ 204. in (b)(2). 

23-17-107. Interception of message — Injuring equipment — 
Penalty. 

If any person without authority intercepts a dispatch or message 
transmitted by telephone or willfully destroys or injures any telephone 
pole, wire, cable, or fixture, he or she is guilty of a Class A misdemeanor. 

History. Acts 1885, No. 107, § 9, p. deleted "telegraph or" preceding the first 

176; C. & M. Dig., § 10246; Pope's Dig., occurrence of "telephone," substituted 

§ 14255; A.S.A. 1947, § 73-1810; Acts "telephone pole" for "telegraph pole," and 

2005, No. 1994, § 204. inserted "Class A" preceding "misde- 

Amendments. The 2005 amendment meanor." 



23-17-109 PUBLIC UTILITIES AND REGULATED INDUSTRIES 110 

23-17-109. [Repealed.] 

Publisher's Notes. This section, con- § 575. The section was derived from Acts 

cerning telegraph companies, divulging 1868, No. 25, § 3, p. 81; C. & M. Dig., 

contents of a message and willful refusal § 10250; Pope's Dig., § 14259; A.S.A. 

to transmit or deliver a message — pen- 1947, § 73-1812. 
alty, was repealed by Acts 2005, No. 1994, 

23-17-111. [Repealed.] 

Publisher's Notes. This section, con- 1897, No. 53, §§ 2, 4, p. 72; C. & M. Dig., 

cerning overcharge by telegraph opera- §§ 874, 10250a; Pope's Dig., §§ 1078, 

tors, was repealed by Acts 2005, No. 1994, 14260; A.S.A. 1947, §§ 73-1403, 73-1405. 
§ 576. The section was derived from Acts 

23-17-119. Surcharges to provide telecommunications for deaf 
and hearing impaired. 

(a) As used in this section: 

(1) "Commercial mobile radio service" means the same as denned at 
§ 12-10-303; and 

(2) "Prepaid wireless telephone service" means the same as denned 
at§ 12-10-303. 

(b)(1) To fund the equipment distribution program established by 
§ 20-79-401 et seq., the Arkansas Public Service Commission may 
impose a surcharge of up to: 

(A) Two-hundredths of a dollar ($0.02) per subject access line per 
month; and 

(B) Two-hundredths of a dollar ($0.02) per working subject tele- 
phone number per month. 

(2) Surcharges imposed by the commission under subdivisions 
(b)(1)(A) and (B) of this section shall: 

(A) Be identical; and 

(B) Not apply to prepaid wireless telephone service. 

(c) The surcharges levied under this section shall be collected by the 
local exchange carriers and commercial mobile radio service providers 
from their customers and remitted to the Department of Finance and 
Administration for deposit as special revenues into the State Treasury 
to the credit of the Telecommunications Equipment Fund for the 
equipment distribution program under § 20-79-401 et seq. 

(d) If revenues collected under this section exceed the costs of 
operating the program established by § 20-79-401 et seq., and if the 
excess at any time equals a three-year average of expenditures under 
this section and § 20-79-401 et seq., then the collection of the surcharge 
shall cease until one-half (V2) of the surplus has been exhausted. 

History. Acts 1995, No. 501, § 4; 2011, wrote present (b); and, in (c), deleted "ac- 

No. 173, § 2. cess line" preceding "surcharges," inserted 

Amendments. The 2011 amendment "and commercial mobile radio service pro- 
added present (a) and redesignated the viders" substituted "remitted to the De- 
remaining subsections accordingly; re- partment of Finance and Administration 



Ill TELEPHONE AND TELEGRAPH COMPANIES 23-17-214 

for deposit" for "deposited" and deleted 
"created in § 19-6-482" following "Tele- 
communications Equipment Fund." 

23-17-120. Establishment of calling plans. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Regulated Industries, 24 U. Ark. 
Legislation, 2001 Arkansas General As- Little Rock L. Rev. 595. 

23-17-121. Agreements for special terminating access rates or 
plans. 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of sembly, Regulated Industries, 24 U. Ark. 
Legislation, 2001 Arkansas General As- Little Rock L. Rev. 595. 

Subchapter 2 — Rural Telecommunications Cooperatives 

SECTION. SECTION. 

23-17-214. Bylaws. 23-17-240. Unclaimed capital credits and 

23-17-216. Membership fees and capital stock, 

credits. 

23-17-202. Definitions. 

CASE NOTES 

Cited: International Paper Co. v. MCI 
Worldcom Network Servs., 202 F. Supp. 
2d 895 (W.D. Ark. 2002). 

23-17-214. Bylaws. 

(a)(1) The power to make, alter, amend, or repeal the bylaws of the 
cooperative shall be vested in the board of directors, subject to amend- 
ment by the members at an annual meeting. 
(2)(A) The board shall not change, alter, amend, or repeal a provision 
of the bylaws adopted by the members except upon a unanimous vote 
of the directors in favor of the change, alteration, amendment, or 
repeal. 

(B) If the directors change, alter, amend, or repeal a bylaw 
provision under this section, the bylaw provision shall remain effec- 
tive unless the change, alteration, amendment, or repeal of the bylaw 
provision is presented by the members at the next annual or special 
meeting of the board. 

(C) If the members at the next annual or special meeting of the 
board do not vote to ratify the directors' action in changing, altering, 
amending, or repealing the bylaw provision in question, the bylaw 
provision in question shall be deleted from the bylaws, and the bylaw 



23-17-216 PUBLIC UTILITIES AND REGULATED INDUSTRIES 112 

provision in question shall revert, effective the day after the mem- 
bers' meeting, to the wording that was in place immediately before 
the directors changed, altered, amended, or repealed the bylaw 
provision. 
(b) The bylaws may contain any provisions for the regulation and 

management of the affairs of the cooperative not inconsistent with law 

or the articles of incorporation. 

History. Acts 1951, No. 51, § 12;A.S.A. members at the next annual or special 

1947, § 77-1612; Acts 1997, No. 316, § 6; meeting of the board" for "be submitted to 

1999, No. 946, § 2; 2009, No. 761, § 1. the members of the cooperative at their 

Amendments. The 2009 amendment next annual or special meeting" in 

subdivided (a)(2), inserted "or repeal" or (a)(2)(B), substituted "next annual or spe- 

variant throughout the subdivision, sub- c i a ] mee ting of the board" for "meeting" in 

stituted "remain effective unless the (a)(2)(C) and made minor stylistic changes 

change, alteration, amendment, or repeal throughout (a), 
of the bylaw provision is presented by the 

23-17-216. Membership fees and capital credits. 

(a) When a member of a cooperative has paid the membership fee in 
full, a certificate of membership shall be issued to the member. 

(b) Memberships in the cooperative and the certificates thereof shall 
be nontransferable and nonassignable. 

(c) Membership may be cancelled upon the resignation, expulsion, 
dissolution, change in ownership, or death of the member or by the 
death or divorce of either party to a joint membership, if joint member- 
ships are provided for in the bylaws. 

(d) The membership fee shall not be refunded. 

(e) Cooperatives shall not pay capital credits to a member, former 
member, patron, or former patron while the cooperative has outstand- 
ing and unpaid obligations in excess of ten percent (10%) of its net 
assets. The board of directors in its discretion may authorize payment 
of any capital credits allocated to deceased former members or patrons 
as provided in the bylaws. If the outstanding and unpaid obligations of 
the cooperative are less than ten percent (10%) of the cooperative's net 
assets based upon the cooperative's consolidated balance sheet as of the 
close of the cooperative's most recently audited fiscal year, the board 
shall have the discretion to pay previously allocated capital credits in 
any amount or manner the board deems appropriate. 

History. Acts 1951, No. 51, § 18;A.S.A. Amendments. The 2007 amendment 
1947, § 77-1618; Acts 1989, No. 437, § 10; substituted "ten percent (10%)" for "sixty 
1999, No. 946, § 4; 2007, No. 1579, § 1. percent (60%)" in two places in (e). 



113 TELEPHONE AND TELEGRAPH COMPANIES 23-17-240 

23-17-236. Construction standards. 

CASE NOTES 

Cited: Stoltze v. Ark. Valley Elec. Coop. 
Corp., 354 Ark. 601, 127 S.W.3d 466 
(2003). 

23-17-237. Limitation of actions. 

CASE NOTES 

Cited: International Paper Co. v. MCI 
Worldcom Network Servs., 202 F. Supp. 
2d 895 (W.D. Ark. 2002). 

23-17-240. Unclaimed capital credits and stock. 

(a) When a cooperative formed under this subchapter declares capi- 
tal credits and any capital credit which remains unclaimed one (1) year 
after notice of the capital credit was transmitted to the last known 
address of the beneficiary of the credit: 

(1) The cooperative shall not be liable for the credit; and 

(2) The credit shall not be deemed unclaimed or abandoned property 
under § 18-28-201 et seq. 

(b)(1) When a cooperative formed under this subchapter has issued 
shares of stock and subsequent to that time has declared by providing 
notice to all shareholders of record that the cooperative is redeeming 
the stock by repurchase, then one (1) year after the notice has been sent 
to the last known address of all shareholders of record: 

(A) The cooperative shall not be liable for the redemption or 
repurchase value of the stock; and 

(B) The stock not redeemed and repurchased shall have no value 
or rights in the cooperative. 

(2) The stock shall not be deemed unclaimed or abandoned property 
under § 18-28-201 et seq. 

(c) References in the Rural Telecommunications Cooperative Act, 
§ 23-17-201 et seq., to "this subchapter" and references in § 23-17-101 
et seq. to "this chapter" shall be deemed to also reference this section. 

History. Acts 1995, No. 898, § 1; 1999, following "under" in (a)(2); inserted (b) 

No. 946, § 17; 2009, No. 761, § 2. and redesignated the subsequent subsec- 

Amendments. The 2009 amendment tion accordingly; deleted "23-17-242" fol- 

subdivided (a) and deleted "the Uniform lowing "§ 23-17-201" in (c); and made 

Disposition of Unclaimed Property Act" related and minor stylistic changes. 

Subchapter 4 — Telecommunications Regulatory Reform 

SECTION. SECTION. 

23-17-402. Legislative findings. 23-17-404. Preservation and promotion of 

23-17-403. Definitions. universal service. 



23-17-402 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



114 



telecommunications 



SECTION. 

23-17-405. Eligible 

carrier. 

23-17-407. Regulation of rates for basic 
local exchange service and 
switched-access service of 
electing companies. 

23-17-409. Authorization of competing lo- 
cal exchange carriers. 

23-17-411. Regulatory reform. 

23-17-412. Optional alternative regula- 
tion of eligible telecommu- 
nications companies. 



SECTION. 

23-17-414. Extended area service. 

23-17-415. Reporting of originating intr- 
astate interexchange tele- 
phone numbers. 

23-17-416. Arkansas instrastate carrier 
common line. 

23-17-417. Arkansas Intrastate Carrier 
Common Line Pool Advi- 
sory Procedural Board. 



Effective Dates. Acts 2003, No. 1788, 
§ 10: Apr. 22, 2003. Emergency clause 
provided: "It is found and determined by 
the General Assembly of the State of Ar- 
kansas, that lowering and stabilizing the 
carrier common line rate will promote 
lower telephone toll rates for Arkansas 
residents and will encourage economic de- 
velopment; that this act is immediately 
necessary to implement the administra- 
tive changes necessary to reduce the car- 
rier common line rate by January 1, 2004; 
and that any delay in the effective date of 
this act could create an undue burden 
upon Arkansas citizens and could work 
irreparable harm upon the efficient provi- 
sion of telecommunications services 
throughout Arkansas. Therefore, an emer- 
gency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 



of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 
Acts 2007, No. 385, § 10: Mar. 19, 2007. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that there is an 
immediate need for the amendment of the 
Telecommunications Regulatory Reform 
Act of 1997 to ensure compliance with 
federal law and regulations and to con- 
tinue to encourage growth and competi- 
tion; that any delay in the effective date of 
this act. Therefore, an emergency is de- 
clared to exist and this act being neces- 
sary for the preservation of the public 
peace, health, and safety shall become 
effective on: (1) The date of its approval by 
the Governor; (2) If the bill is neither 
approved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 
(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 



23-17-402. Legislative findings. 

It is the intent of the General Assembly in enacting this subchapter 
to: 

(1) Provide for a system of regulation of telecommunications ser- 
vices, consistent with the federal act, that assists in implementing the 
national policy of opening the telecommunications market to competi- 
tion on fair and equal terms, modifies outdated regulation, eliminates 
unnecessary regulation, and preserves and advances universal service; 

(2) Recognize that a telecommunications provider that serves high- 
cost rural areas or exchanges faces unique circumstances that require 



115 TELEPHONE AND TELEGRAPH COMPANIES 23-17-403 

special consideration and funding to assist in preserving and promoting 
universal service; 

(3) Recognize that the: 

(A) Widespread and timely deployment of broadband infrastruc- 
ture is vital to the economic, educational, health, and social interests 
of Arkansas and its citizens; and 

(B) Arkansas High Cost Fund has enabled eligible telecommuni- 
cations carriers to accelerate and promote the incremental extension 
and expansion of broadband services and other advanced services in 
rural or high-cost areas of the state beyond what would normally 
occur, and broadband services are now available in dozens of new 
communities to thousands of Arkansans who otherwise would not 
have access to broadband services and its benefits; 

(4)(A) Recognize differences between the small and large incumbent 
local exchange carriers, that there are customer-owned telephone 
cooperatives and small locally owned investor companies, and that it 
is appropriate to provide incentives and regulatory flexibility to allow 
incumbent local exchange carriers that serve the rural areas to 
provide existing services and to introduce new technology and new 
services in a prompt, efficient, and economical manner. 

(B) The General Assembly finds that the Arkansas Public Service 
Commission, when promulgating rules and regulations, should take 
into consideration the differences in operating conditions in the large 
and small incumbent local exchange carriers and the burdens placed 
on small carriers because of regulation; and 

(5)(A) Recognize that in areas of the state served by electing compa- 
nies, telecommunications connections utilizing unregulated technolo- 
gies such as wireless and Voice over Internet Protocol greatly 
outnumber traditional wireline connections that remain regulated by 
the commission. 

(B) The General Assembly finds that the removal of quality-of- 
service regulation of wireline services provided in the competitive 
exchanges of electing companies will serve to encourage private- 
sector investment in the telecommunications marketplace. 

History. Acts 1997, No. 77, § 2; 2011, The 2011 amendment by No. 594 added 

No. 290, § 1; 2011, No. 594, § 1. (3) and redesignated former (3) as (4); 

Amendments. The 2011 amendment substituted "Arkansas Public Service 

by No. 290 inserted present (3) and (4) and Commission" for "commission" in (4)(B); 

redesignated former (3) as (5); and substi- an d added (5). 
tuted "Arkansas Public Service Commis- 
sion" for "commission" in (5)(B). 

23-17-403. Definitions. 

As used in this subchapter: 

(1) "Access line" means a communications facility extending from a 
customer's premises to a serving central office comprising a subscriber 
line and, if necessary, a trunk facility; 



23-17-403 PUBLIC UTILITIES AND REGULATED INDUSTRIES 116 

(2)(A) "Affiliate" means any entity that, directly or indirectly, owns or 
controls, is owned or controlled by, or that is under common owner- 
ship or control with another entity. 

(B) For the purpose of this definition, "owns or controls" means 
holding at least a majority of the outstanding voting power; 

(3) "Arkansas IntraLATA Toll Pool" means the unincorporated orga- 
nization of the Arkansas incumbent local exchange carriers, approved 
by the commission, whose purpose is to redistribute the pooled rev- 
enues from intraLATA toll telephone service; 

(4) "Arkansas Intrastate Carrier Common Line Pool" or "AICCLP" 
means the unincorporated organization of the providers of Arkansas 
telecommunications services, authorized by the commission and by 
state law, whose purpose is to manage billing, collection, and distribu- 
tion of the carrier common line revenue requirements; 

(5) "Basic local exchange service" means the service provided to the 
premises of residential or business customers composed of the follow- 
ing: 

(A) Voice-grade access to the public switched network, with ability 
to place and receive calls; 

(B) Touch-tone service availability; 

(C) Flat-rate residential local service and business local service; 

(D) Access to emergency services (911/E911) where provided by 
local authorities; 

(E) Access to basic operator services; 

(F) A standard white-page directory listing; 

(G) Access to basic local directory assistance; 

(H) Access to long distance toll service providers; and 
(I) The minimum service quality as established and required by 
the commission on February 4, 1997; 

(6) "Commercial mobile service" means cellular, personal communi- 
cations systems and any service regulated pursuant to Part 20 of the 
rules and regulations of the Federal Communications Commission, 47 
C.F.R. Part 20, or any successor provisions; 

(7) "Commission" means the Arkansas Public Service Commission; 

(8) "Competing local exchange carrier" or "CLEC" means a local 
exchange carrier that is not an incumbent local exchange carrier; 

(9) "Electing company" means a local exchange carrier that elects to 
be regulated pursuant to §§ 23-17-406 — 23-17-408; 

(10) "Eligible telecommunications carrier" means the local exchange 
carrier determined in accordance with § 23-17-405; 

(11) "Embedded investment" means the amount of investment in 
telephone plant that has already been made by an incumbent local 
exchange carrier as of February 4, 1997; 

(12) "FCC" means the Federal Communications Commission; 

(13) "Facilities" means any of the physical elements of the telephone 
plant that are needed to provide or support telecommunications ser- 
vices, including switching systems, cables, fiber optic and microwave 
radio transmission systems, measuring equipment, billing equipment, 



117 TELEPHONE AND TELEGRAPH COMPANIES 23-17-403 

operating systems, billing systems, ordering systems, and all other 
equipment and systems that a telecommunications service provider 
uses to provide or support telecommunications services; 

(14) "Federal act" means the Communications Act of 1934, as 
amended; 

(15) "Government entity" includes all Arkansas state agencies, com- 
missions, boards, authorities, and all Arkansas public educational 
entities, including school districts, and political subdivisions, including 
incorporated cities and towns and all institutions, agencies or instru- 
mentalities of municipalities, and county governments; 

(16) "Incumbent local exchange carrier" or "ILEC" means, with 
respect to a local exchange area, a local exchange carrier, including 
successors and assigns, that is certified by the commission and was 
providing basic local exchange service on February 8, 1996; 

(17) "Interstate access charge pools" means the system, currently 
administered by the National Exchange Carriers Association, wherein 
participating local exchange carriers pool billed interstate access rev- 
enues; 

(18) "Local exchange area" means the geographic area, approved by 
the commission, encompassing the area within which a local exchange 
carrier is authorized to provide basic local exchange services and 
switched-access services; 

(19) "Local exchange carrier" or "LEC" means a telecommunications 
provider of basic local exchange service and switched-access service. 
The term does not include commercial mobile service providers; 

(20) "Network element" means a facility or equipment used in the 
provision of a telecommunications service. The term also includes 
features, functions, and capabilities that are provided by means of the 
facility or equipment, including subscriber numbers, databases, signal- 
ing systems, and information sufficient for billing and collection or used 
in the transmission, routing, or other provision of a telecommunications 
service; 

(21) "Resale" means the purchase of services by one (1) local ex- 
change carrier from another local exchange carrier for the purpose of 
reselling those services directly or indirectly to an end-user customer; 

(22) "Rural telephone company" means a local exchange carrier 
defined as a rural telephone company in the federal act as of February 
4, 1997; 

(23) "Switched-access service" means the provision of communica- 
tions between a customer premise and an interexchange carrier's point 
of interconnection with a local exchange carrier's network for the 
completion of end-user calls to the public switched network for the 
origination or termination of interexchange long distance traffic; 

(24) "Telecommunications provider" means any person, firm, part- 
nership, corporation, association, or other entity that offers telecommu- 
nications services to the public for compensation; 

(25)(A) "Telecommunications services" means the offering to the 
public for compensation the transmission of voice, data, or other 



23-17-403 PUBLIC UTILITIES AND REGULATED INDUSTRIES 118 

electronic information at any frequency over any part of the electro- 
magnetic spectrum, notwithstanding any other use of the associated 
facilities. 

(B) The term does not include radio and television broadcast or 
distribution services, or the provision or publishing of yellow pages, 
regardless of the entity providing the services, or services to the 
extent that the services are used in connection with the operation of 
an electric utility system owned by a government entity; 
(26)(A) "Tier one company" means any incumbent local exchange 
carrier that, together with its Arkansas affiliates that are also 
incumbent local exchange carriers, provides basic local exchange 
services to greater than one hundred fifty thousand (150,000) access 
lines in the State of Arkansas on February 4, 1997. 

(B) Changes in designation of an incumbent local exchange carrier, 
or portions thereof, as a tier one company or non-tier one company 
may be effected by prior approval from the commission pursuant to 
§ 23-17-411(1); 

(27) "Universal service" means those telecommunications services 
that are defined and listed in the definition of basic local exchange 
service until changed by the commission pursuant to § 23-17- 
404(e)(2)(A); 

(28) "Extended area service" means an unlimited local service pro- 
vided to the customer at a fixed rate that: 

(A) Is mandated by the commission at the election of customers 
within a local exchange area; 

(B) Provides one-way or two-way calling between basic local ex- 
change service customers within the local exchange area of one (1) or 
more incumbent local exchange carriers; and 

(C) Is not included as part of basic local exchange service; 

(29) "Access minute", unless otherwise defined by the Arkansas 
Public Service Commission, means the measurement of usage to 
provision communications between: 

(A) A customer premises and an interexchange carrier's point of 
interconnection with a local exchange carrier's network for the comple- 
tion of end-user calls to the public switched network for the origination 
and termination of interexchange long distance traffic; and 

(B) A customer premises and another LEC's point of termination 
with a local exchange carrier's network for the completion of end-user 
calls to the public switched network for the origination and termination 
of interexchange long distance traffic; 

(30) "AICCLP member" means an ILEC that is eligible to be a 
member of the AICCLP after December 31, 2003, and that has not 
terminated its membership under § 23-17-416(f)(2); 

(31)(A) "AICCLP rate adjustment" means the local service rate 
adjustment, determined by the AICCLP administrator, that may be 
charged by each AICCLP member to its customers to recover a portion 
of its carrier common line net revenue requirement. 

(B)(i) For any AICCLP member that is eligible to be a member of the 
AICCLP as of January 1, 2004, for whom the sum of the residential 



119 TELEPHONE AND TELEGRAPH COMPANIES 23-17-403 

local exchange rate and extended area service additive is higher than 
the average residential local exchange rate for all members eligible to 
be members as of January 1, 2004, the monthly AICCLP rate 
adjustment shall be the lesser of fifty cents (50c0 or an amount that 
yields the total monthly carrier common line net revenue require- 
ment per access line. 

(ii) For any AICCLP member that is eligible to be a member of the 
AICCLP as of January 1, 2004, for whom the sum of its residential 
local exchange rate and extended area service additive is lower than 
the average residential local exchange rate for all members eligible to 
be members as of January 1, 2004, the monthly AICCLP rate 
adjustment shall be the lesser of seventy-five cents (75c0 or an 
amount that yields the total monthly carrier common line net 
revenue requirement per access line. 

(hi) If the amount due to an AICCLP member under § 23-17- 
416(h) is limited due to the annual one million three hundred 
thousand dollar ($1,300,000) cap under § 23-17-416(e)(8)(B)(i) and if 
the member's AICCLP rate adjustment and the amount due to the 
AICCLP member under § 23- 17-4 16(h) do not allow the member to 
recover its common line net revenue requirement, the member may 
charge an additional amount for local rates to recover its carrier 
common line net revenue requirement; 

(32) "Arkansas intrastate telecommunications services revenues" 
means the revenues of all carriers that are not ILECs, that are derived 
from end-users for telecommunications within Arkansas and telecom- 
munications services provided within Arkansas, including messages 
that are switched or otherwise temporarily transported outside of 
Arkansas in the process of delivering the message within Arkansas; 

(33) "Carrier common line net revenue requirement" means the 
monthly variable funding requirement of an AICCLP member, which is 
calculated as the sum of the member's intrastate carrier common line 
revenue requirement, the member's terminating carrier common line 
expense based on its per-minute terminations on other ILECs, the 
member's Arkansas Calling Plan Fund and Extension of Telecommuni- 
cations Facilities Fund expense, and the member's share of AICCLP 
administrative fees, minus the sum of the carrier common line revenue, 
based on per-minute terminations received from other ILECs, carrier 
common line revenue received from underlying carriers for originating 
and terminating access minutes, the AICCLP rate adjustment, and the 
fixed ILEC retail billed minutes of use expense based on the data 
development period determination of average monthly retail billed 
minutes of use expense of the member; 

(34) "Data development period" means the time period in which the 
AICCLP members and initial exiting ILECs shall obtain relevant data 
necessary to: 

(A) Calculate the fixed amounts of retail billed minutes-of-use ex- 
pense and to test and obtain reliability of the billing and reporting 
systems to be used by the AICCLP; and 



23-17-403 PUBLIC UTILITIES AND REGULATED INDUSTRIES 120 

(B) Calculate the fixed carrier common line revenue shortfall for 
members required to exit the pool on December 31, 2003; 

(35) "Exiting ILEC" means an ILEC that terminates its membership 
in the AICCLP under § 23-17-416(f); 

(36) "Fixed carrier common line revenue shortfall" means the total 
annual funding requirement of an ILEC that must exit the AICCLP 
under § 23-17-416(f)(l), which is calculated as the sum of an ILEC's 
intrastate carrier common line revenue requirement, the ILEC's termi- 
nating carrier common line expense based on its per-minute termina- 
tions on other ILECs, and the ILEC Arkansas Calling Plan Fund and 
Extension of Telecommunications Facilities Fund expense, minus the 
sum of the carrier common line revenue, based on per-minute termina- 
tions received from other ILECs, carrier common line revenue received 
from underlying carriers for originating and terminating access min- 
utes, and the fixed ILEC retail billed minutes of use expense based on 
the data development period determination of average monthly retail 
billed minutes of use expense of the ILEC; 

(37) "Fixed ILEC retail billed minutes of use expense" means the 
fixed determination of the average retail billed minutes-of-use expense 
paid to the AICCLP by the ILEC based upon the ILEC's three-month 
average retail billed minutes of use expense during its applicable data 
development period, as determined under § 23- 17-4 16(h), exclusive of 
any retail billed minutes of use expense associated with retail billed 
minutes of uses provided by a toll reseller of an underlying carrier that 
is an ILEC; 

(38) "ILEC Arkansas Calling Plan Fund and Extension of Telecom- 
munications Facilities Fund expense" means the charge assessed 
against an ILEC in proportion to the AICCLP credits that were 
eliminated by § 23-17-404(e)(4)(D)(iv)(6); 

(39) "ILEC intrastate carrier common line revenue requirement" 
means the fixed annual payment that each ILEC was entitled to receive 
from the AICCLP, before any offsets or adjustments, as provided in the 
Arkansas Intrastate Carrier Common Line Pool tariff, as it existed 
before January 1, 2004; 

(40) "Special intrastate ILEC revenue" means the revenue a toll 
reseller pays to an ILEC when the ILEC provides toll services to the toll 
reseller; 

(41) "Toll reseller" means a carrier that resells intrastate telecom- 
munications services that are provided to the carrier by an underlying 
carrier; 

(42 )( A) "Total customer access base" means the total of all eligible 
telecommunications carrier customer access lines within Arkansas of 
an entity that directly or indirectly owns or controls, is owned or 
controlled by, or is under common ownership or control with another 
entity 

(B) For the purposes of subdivision (42)(A) of this section, "own" 
means to own an equity interest or the equivalent thereof of more than 
ten percent (10%); 



121 TELEPHONE AND TELEGRAPH COMPANIES 23-17-403 

(43) "Underlying carrier" means a facilities-based CLEC or an inter- 
exchange carrier, other than an ILEC, that originates and terminates 
intrastate interexchange calls on the public switched network directly 
or through resale to a toll reseller or an ILEC that provides the toll 
services used by a toll reseller; 

(44) "Telecommunications Providers Rules" or "TPRs" means those 
rules applicable to telecommunications providers that have been 
adopted by the commission; 

(45) "Universal Service Administration Company" or "USAC" means 
a corporation under that name or its successor that performs various 
administrative and procedural duties prescribed to it by the FCC and 
others; 

(46) "National Exchange Carrier Association, Inc.," or "NEC A" 
means a corporation by that name or its successor that performs 
various administrative functions and procedural duties prescribed to it 
by the FCC and others; 

(47) "Study area" means a geographic area designated by the FCC 
and used by NECA or USAC for calculation of cost per loop within the 
geographic area's boundaries for federal high-cost loop support; 

(48) "Annual unseparated unlimited loop requirement" means a 
financial algorithm calculated annually by NECA and USAC that 
includes all the loop investment, expenses, and other loop costs of 
providing service within the study area of an eligible telecommunica- 
tions carrier; 

(49) "2007 revenue base" means the gross revenue an ETC was 
eligible to receive from the AUSF during the first six (6) months of 2007 
annualized without reduction for an overpayment that occurred in 
2006; 

(50) "Average schedule company" means a company that uses a 
proxy established from a formula using the average costs of a group of 
companies rather than using the company's specific costs in reporting to 
NECA; 

(51) "Wireline ETC" means a wireline eligible telecommunications 
carrier that is a local exchange carrier; 

(52) "Wireless ETC" means a wireless eligible telecommunications 
carrier that is a commercial mobile service provider; 

(53) "Local switching support" means funding to assist high cost 
companies in recovering the costs of switching intrastate calls; and 

(54) "Wire center" means the location of one (1) or more local 
switching systems, a point at which end user's loops within a defined 
geographic area converge. 

History. Acts 1997, No. 77, § 3; 2003, "(1) The development of an administra- 

No. 1764, § 1; 2003, No. 1788, §§ 1-6; tively streamlined universal service fund 

2007, No. 385, §§ 2, 3. based upon high cost support is important 

A.C.R.C. Notes. Acts 2007, No. 385, public policy; 

§ 1, provided: "(2) It is administratively efficient to 

"Legislative findings. use financial data submitted by eligible 

"The General Assembly finds that: telecommunications companies to federal 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 122 

agencies, made under penalty of law, and "(4) Due to the complex nature and 
when appropriate, cost proxies, for the ever-changing administration of telecom- 
high-cost support mechanism, to be called munications at the federal level, potential 
the "Arkansas High Cost Fund", thereby changes in how access charges are col- 
eliminating the need for extensive finan- lected could disrupt support for eligible 
cial review and the high administrative telecommunications companies serving 



costs created by such reviews; 



rural areas; 

"(5) Eligible telecommunications com- 

(3) A five-year transition from the Ar- mei Sbers of the AICCLP are more 

kansas Universal Service Fund to the adversely affected by sudden changes in 

Arkansas High Cost Fund is important reg ulation, access charges, and statutory 

public policy due to the shift from a rev- changes; and" 

enue replacement fund based upon cur- Amendments. The 2007 amendment 
rent changes to a high-cost fund using substituted "eligible telecommunications 
financial data that is two (2) or more years carrier" for "ILEC" in (42)(A), and added 
old; (44) through (54). 

23-17-404. Preservation and promotion of universal service. 

(a)(1) The Arkansas High Cost Fund (AHCF) is established by this 
section in order to promote and assure the availability of universal 
service at rates that are reasonable and affordable and to provide for 
reasonably comparable services and rates between rural and urban 
areas. 

(2) The AHCF will provide funding to an eligible telecommunications 
carrier that provides basic local exchange services using its own 
facilities or a combination of its own facilities and another carrier's 
facilities by the eligible telecommunications carrier within its study 
area. 

(3) The AHCF shall be designed to provide predictable, sufficient, 
and sustainable funding to eligible telecommunications carriers serving 
rural or high-cost areas of the state. 

(4) The AHCF shall also be used to accelerate and promote the 
incremental extension and expansion of broadband services and other 
advanced services in rural or high-cost areas of the state beyond what 
would normally occur and support the Lifeline Assistance Program to 
eligible low-income customers. 

(b)(1) The AHCF is to provide a mechanism to restructure the 
present system of telecommunication service rates in the state as 
provided herein, and all telecommunications providers, except as pro- 
hibited by federal law, shall be charged for the direct and indirect value 
inherent in the obtaining and preserving of reasonable and comparable 
access to telecommunications services in the rural or high-cost areas. 
The value and utility of access to and interconnection with the public 
switched network will be lessened if the rural or high-cost areas do not 
have comparable access and subscribership. 

(2)(A) This AHCF charge for all telecommunications providers shall 
be proportionate to each provider's Arkansas intrastate retail tele- 
communications service revenues. 

(B) Because customers of the telecommunications providers that 
would pay the AHCF charge receive the benefits of a universal 
network, the telecommunications providers may surcharge their 



123 TELEPHONE AND TELEGRAPH COMPANIES 23-17-404 

customers to recover the AHCF charges paid by the telecommunica- 
tions provider. Therefore, the AHCF charge is not a tax and is not 
affected by state laws governing taxation. 

(C) For the purpose of assessing mobile telecommunications ser- 
vices, the AHCF administrator shall continue to assess only Arkansas 
intrastate retail telecommunications service revenues and only to the 
extent such revenues may be considered located in the State of 
Arkansas in accordance with the Mobile Telecommunications Sourc- 
ing Act, Pub. L. No. 106-252. 

(c)(1)(A) The Arkansas Public Service Commission shall delegate to a 
trustee, the "AHCF administrator", the administration, collection, 
and distribution of the AHCF within forty-five (45) days of the 
effective date of the adoption of rules and procedures to implement 
the AHCF. 

(B) In evaluating responses to request for proposals for the AHCF 
administrator's position, the commission shall consider and give 
material weight to the applicant's: 

(i) Familiarity with Arkansas ETCs, Arkansas access rates, AIC- 
CLP history and procedures, and AUSF history and procedures; and 

(ii) Personal availability to provide information and assistance to 
the General Assembly, telecommunications providers, and members 
of the public. 

(2)(A) The AHCF administrator shall enforce and implement all 
rules and directives governing the funding, collection, and eligibility 
for the AHCF. 

(B) As soon as practicable after the AHCF administrator is desig- 
nated, he or she shall: 

(i) Promptly notify all Arkansas ETCs of the availability of AHCF 
support and accept requests for AHCF support from Arkansas ETCs; 
and 

(ii) Review and determine the accuracy and appropriateness of 
each request and advise the entity requesting the funds of his or her 
determination, including: 

(a) Eligibility for support; 

(b) The unreduced amount of support available during the 
phase-in period; 

(c) The uncapped amount of support available; and 

(d) The actual support available after implementation of all 
phase-in reductions and fund cap limitations. 

(C) The affected parties shall have thirty (30) days to request 
reconsideration by the commission of the AHCF administrator's 
determination, and the commission after notice and hearing, if 
requested, shall issue its opinion on the reconsideration within thirty 
(30) days after the request of reconsideration unless continued by the 
commission. 

(D) Persons aggrieved by the commission's opinion shall have the 
right to appeal the opinion in accordance with law. 

(d)(1)(A) The AHCF administrator periodically shall establish and 
notify each telecommunications provider of the AHCF charge levels 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 124 

required to be paid by the telecommunications provider. In order to 
fund the AHCF at the required level, as soon as administratively 
reasonable after March 19, 2007, the AUSF administrator shall 
adjust the surcharge to ensure it will adequately fund the projected 
monthly payments required under this section, have sufficient re- 
serves, and have the surplus necessary to fund the transition period 
required by this section. The AUSF administrator shall continue to 
charge and collect the AUSF surcharge until the AHCF administrator 
is designated by the commission and the AHCF administrator has 
adequate time to undertake charging and collecting the surcharge as 
the AHCF charge. 

(B) The AUSF administrator shall continue to administer the 
AUSF until the AUSF has paid all administrative fees and completed 
its duties. The AUSF administrator shall cooperate with the AHCF 
administrator in transferring information and documentation neces- 
sary for the AHCF administrator to bill and collect charges from 
responsible parties and to transfer information about all accounts 
receivable due the AUSF administrator from responsible parties. 

(C) All accounts payable to the AUSF administrator, all funds held 
by the AUSF administrator, and assets of the AUSF administrator 
shall be transferred to the AHCF administrator, when the AHCF 
administrator requests, to allow the AHCF administrator to carry out 
his or her function. When the AUSF administrator has completed his 
or her duties under the AUSF and completed his or her duties 
concerning transfer of information and other assistance, the AUSF 
administrator shall terminate all further activity in regard to the 
AUSF and the AHCF. If a transfer of funds is made to the AHCF 
administrator before the finalization of all duties by the AUSF 
administrator, the AUSF administrator may retain funds necessary 
for the AUSF administrator to fully pay all expected administrative 
costs of finalizing his or her duties and thereafter shall transfer any 
remaining funds to the AHCF administrator. 

(2) Any telecommunications provider that without just cause fails to 
pay the AHCF charge that is due and payable pursuant to this section 
after notice and opportunity for hearing shall have its authority to do 
business as a telecommunications provider in the State of Arkansas 
revoked by the commission. 

(3) The AHCF charge shall not be subject to any state or local tax or 
franchise fees. 

(e) After reasonable notice and hearing, the commission shall estab- 
lish rules and procedures necessary to implement the AHCF. The 
commission shall implement the AHCF and make AHCF funds avail- 
able to eligible telecommunications carriers beginning the first calen- 
dar month after one hundred fifty (150) days after March 19, 2007. In 
establishing and implementing the AHCF, the commission shall adhere 
to the following instructions and guidelines: 

(1)(A) AHCF funding shall be provided directly to eligible telecom- 
munications carriers. 



125 TELEPHONE AND TELEGRAPH COMPANIES 23-17-404 

(B)(i) Except in an exchange in which the electing company is 
authorized under § 23-17-407(d) to determine the rates for basic 
local exchange service and switched-access services under § 23-17- 
408(c), for an ETC to receive funds from the AHCF, the ETC shall 
agree to be subject to and comply with all telecommunications 
provider rules adopted by the commission, unless the commission 
finds the technology used by the ETC to provide telecommunications 
service makes a rule inapplicable. 

(ii) Except in any exchange in which the electing company is 
authorized under § 23-17-407(d) to determine the rates for basic 
local exchange service and switched-access services pursuant to 
§ 23-17-408(c), each ETC shall be subject to all TPRs concerning 
application for service, refusing service, deposits, notices before 
disconnect, late payment penalties, elderly and handicapped protec- 
tion, medical need for utility services, delayed payment agreements, 
and extended due dates. 

(2)(A) The commission shall provide a report to the Legislative 
Council by October 31 of the year prior to a regular session of the 
General Assembly detailing any recommended changes to the univer- 
sal service list of requirements that are to be supported by the AHCF. 
This list may be approved by the General Assembly, and if approved, 
the AHCF support to ETCs may be adjusted, due to the approved 
changes, to reflect an increase or decrease in the size of the AHCF by 
increasing or decreasing the overall financial cap on the AHCF to 
recover the cost of additions or revisions to the universal service list 
concurrent with any such revisions to the list of universal services 
identified in § 23-17-403. 

(B) In considering revisions to the universal service list, the 
commission shall consider the need for the addition or removal of a 
service to the list in order to maintain end-user rates for universal 
services that are reasonably comparable between urban and rural 
areas or to reflect changes in the type and quality of telecommunica- 
tions services considered essential by the public as evidenced, for 
example, by those telecommunication services that are purchased 
and used by a majority of single-line urban customers. 

(C) A rate case proceeding or earning investigation or analysis 
shall not be required or conducted in connection with the recovery of 
the cost of additions or revisions or in connection with the adminis- 
tration of the AHCF; 

(3)(A) The AICCLP members shall charge the rate under subdivision 
(e)(4)(B)(i) of this section to underlying carriers. 

(B) The ILECs shall charge a reciprocal rate to other ILECs. 

(C) The commission may review the accuracy of the reciprocal 
rates and the per-access minute carrier common line rate charged 
under subdivision (e)(4)(B)(i) of this section. 

(D) If the AICCLP fails to provide an ILECs carrier common line 
net revenue requirement, the ILEC may obtain concurrent recovery 
of the revenue loss from basic local exchange rates, intrastate access 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 126 

rate adjustments, or a combination thereof. Any recovery of revenue 
loss under this subdivision (e)(3)(D) shall not be subject to the caps on 
local rates under § 23-17-412; 

(4)(A) Through December 31, 2003, except as provided in this sub- 
division (e)(4)(A), the intrastate Carrier Common Line Pool charges 
billed to carriers by the Arkansas Intrastate Carrier Common Line 
Pool (AJCCLP) shall be determined as provided in the AICCLP tariff 
effective on December 31, 2000. Following April 20, 2001, carriers 
must continue to report RBMOUs associated with the traffic that 
they reported as of December 2000, except that incumbent local 
exchange carriers may discontinue reporting RBMOUs associated 
with their intracompany flat-rated optional plans that exist as of 
June 1, 2001. The AJCCLP charges shall be adjusted to eliminate any 
credits to the AJCCLP or to interexchange carriers that have been 
previously required. 

(B)(i) Beginning January 1, 2004, except as provided in this 
subdivision (e)(4)(B), the intrastate Carrier Common Line charges 
billed to ILECs and underlying carriers shall be determined at the 
rate of one and sixty-five hundredths cents (1.65g0 per intrastate 
access minute, exclusive of the amounts specified for funding the 
Extension of Telecommunications Facilities Fund and the Arkansas 
Calling Plan Fund. However, ILECs that are not AJCCLP members 
may charge at a rate that is less than one and sixty-five hundredths 
cents (1.65c0 and may recover the difference between the actual rate 
charged and one and sixty-five hundredths cents (1.65c0 as allowed 
under § 23-17-416(b)(3). Following April 20, 2001, carriers must 
continue to report RBMOUs associated with the traffic that they 
reported as of December 2000 and shall continue to report through 
December 31, 2003, except that incumbent local exchange carriers 
may discontinue reporting RBMOUs associated with their intracom- 
pany flat-rated optional plans that exist as of June 1, 2001. The 
AJCCLP charges shall be adjusted to eliminate any credits to the 
AICCLP or to interexchange carriers that have been previously 
required. 

(ii)(a) There is created an allocation of AJCCLP funds to be known 
as the "Extension of Telecommunications Facilities Fund". 

(b) A maximum of five hundred thousand dollars ($500,000) per 
year of AJCCLP funds shall be allocated to fund the Extension of 
Telecommunications Facilities Fund to assist in the extension of 
telecommunications facilities to citizens not served by the wire line 
facilities of an eligible telecommunications carrier. 

(iii)(a)(l) There is also created an AJCCLP allocation to be known 
as the "Arkansas Calling Plan Fund". 

(2) Through December 31, 2003, the Extension of Telecommunica- 
tions Facilities Fund and the Arkansas Calling Plan Fund will be 
funded by the AJCCLP by assessing one-half (V2) of the fund to be paid 
by ILECs and one-half (V2) of the fund to be paid by all other 
telecommunications providers reporting intrastate retail billed min- 
utes of use to the AJCCLP. 



127 TELEPHONE AND TELEGRAPH COMPANIES 23-17-404 

(b) The Arkansas Calling Plan Fund shall receive a maximum of 
four million five hundred thousand dollars ($4,500,000) per year to 
assist in funding the provision of calling plans in telephone ex- 
changes in the state. 

(iv)(a) Through December 31, 2003, the Extension of Telecommu- 
nications Facilities Fund and the Arkansas Calling Plan Fund will be 
funded by the AICCLP assessing one-half i}/i) of the fund to be paid by 
incumbent local exchange carriers (ILECs) and one-half (V2) of the 
fund to be paid by all other telecommunications providers reporting 
intrastate retail billed minutes of use to the AICCLP. Beginning 
January 1, 2004, the Extension of Telecommunications Facilities 
Fund and the Arkansas Calling Plan Fund will be paid by the 
AICCLP members, exiting ILECs, and underlying carriers as follows: 

(1) Each AICCLP member and each exiting ILEC shall remit to the 
AICCLP administrator on a monthly basis the proportion of the total 
assessment each was paying before December 31, 2003, for a collec- 
tive total of one-half (V2) of those funds; 

(2) Underlying carriers shall pay to the administrator a collective 
total of one-half (V2) of the cost of the Arkansas Calling Plan Fund and 
Extension of Telecommunications Facilities Fund; and 

(3) Each underlying carrier shall continue to remit to the admin- 
istrator on a monthly basis its portion of the underlying carrier 
funding requirement of the Arkansas Calling Plan Fund and Exten- 
sion of Telecommunications Facilities Fund, based upon the under- 
lying carrier's share of Arkansas intrastate telecommunications 
services revenues and special intrastate ILEC revenues proportion- 
ate to the total Arkansas intrastate telecommunications services 
revenues and special intrastate ILEC revenues of all underlying 
carriers. 

(b) Through December 31, 2003, ILECs shall be individually 
assessed in accordance with the proportion that the ILEC funds the 
AICCLP credits that are being eliminated by this section, and each 
other telecommunications provider shall be assessed based on its 
portion of the total non-ILEC intrastate retail billed minutes of use. 

(c) Amounts paid by ILECs to fund either the Extension of Tele- 
communications Facilities Fund or the Arkansas Calling Plan Fund 
created by this section shall not be recoverable from the Arkansas 
Universal Service Fund (AUSF). 

(d)(1) The assessments shall commence upon the first day of the 
month following April 20, 2001. 

(2) Assessments shall be made with respect to the Extension of 
Telecommunications Facilities Fund and the Arkansas Calling Plan 
Fund only to the extent necessary, but not more than the maximum 
specified in this section, to fund any extensions of facilities or calling 
plans approved by the Arkansas Public Service Commission in 
accordance with applicable law and this section. 

(v)(a) AICCLP charges determined and billed through December 
2000 shall be considered final and not subject to further true up or 
adjustment. 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 128 

(b)(1)(A) Unless an audit is requested prior to February 28, 2004, 
by a two-thirds (%) vote of the participating carriers of the AICCLP 
as it is constituted prior to January 1, 2004, charges determined and 
billed through December 2003 shall be considered final and not 
subject to audit. 

(B) The AICCLP board, with the assistance of the administrator, 
shall allow recipients and payors to correct any errors concerning the 
AICCLP settlement process for corrections that are for the time 
period after December 31, 2003. 

(2) The administrator of the AICCLP as it existed prior to January 
1, 2004, may supervise any audit that is requested and may further 
take any action deemed reasonable or necessary to finalize the 
winding-up process of the AICCLP as it existed prior to January 1, 
2004. 

(C)(i) Any ETC may receive support from the AHCF after it is 
established and operational. Until that time, the current AUSF shall 
continue to provide support through June 30, 2007, at the level set by 
commission order. After June 30, 2007, the support level for compa- 
nies receiving payments from the AUSF shall continue at the level 
previously ordered by the commission subject to an adjustment to 
reflect the elimination of an overpayment made to AUSF recipients in 
2006. At such time that the AHCF is fully operational and providing 
support to ETCs through the formula set forth herein, all payments 
from the AUSF shall cease and the AUSF shall be eliminated and 
administratively closed as soon as possible. 

(ii)(a) The formula is as follows for ETCs with fewer than five 
hundred thousand (500,000) access lines or customers: 

(1) The AHCF administrator shall determine the support for High 
Cost Loop Support by using the most current annual filing of annual 
unseparated unlimited loop revenue requirement cost per loop of the 
ETCs study area as developed each year by NECA and filed with 
US AC. For an ETC not submitting such information, the ETC shall 
submit equivalent information to the administrator for the adminis- 
trator to calculate as to cost per loop for wireline or per customer for 
commercial mobile service providers. Unless the commission deter- 
mines otherwise the raw financial data submitted to the administra- 
tor to establish an alternate cost per loop shall be treated as 
confidential; 

(2) The AHCF administrator shall then subtract the per-loop 
federal high-cost loop support as developed each year by NECA and 
filed with USAC of the ETCs study area or alternatively the total 
high-cost loop support per loop or per customer as calculated by the 
AHCF administrator with data provided by the ETC; 

(3) The AHCF administrator shall also subtract the amount of 
three hundred forty-four dollars and forty cents ($344.40) per loop, 
due to the responsibility of each ETC to fund through local rates and 
other revenue such as AICCLP revenue requirements and access 
charges, to fund a significant portion of their cost per loop. Alterna- 



129 TELEPHONE AND TELEGRAPH COMPANIES 23-17-404 

tively, the AHCF administrator shall subtract three hundred forty- 
four dollars and forty cents ($344.40) per loop or customer from ETCs 
not reporting loops and loop cost to NECA; 

(4) The AHCF administrator shall determine the high-cost support 
for each ETC by subtracting these reductions as set forth in this 
formula from the annual unseparated unlimited loop revenue re- 
quirement and apply it to the total number of loops in the ETCs 
study area as of December 31 of the preceding year that are eligible 
for support for federal universal service. As to ETCs not reporting 
loops within its study area, the AHCF administrator shall apply the 
reductions to the total number of loops or customers of the ETC 
eligible for support for federal universal service as of December 31 of 
the preceding year; and 

(5) The remaining balance, if positive as to each ETC, shall be the 
ETCs loop support element to support an ETCs high cost loops. As to 
ETCs funded based upon customers, the remaining balance, if 
positive, shall be called the "customer support element". 

(b)(1) The AHCF administrator shall determine local switching 
support (LSS) of each ETC using the most current annual financial 
data submitted to NECA and calculated by USAC and applying the 
following procedure: 

(A) The AHCF administrator shall use the most current trued up 
local switching support amount that has been calculated by NECA 
and submitted to USAC annually for each ETC within its size group. 
For each ETC that does not have an individually calculated local 
switching support amount, the AHCF administrator shall calculate a 
local switching support amount by using an average of all ETCs 
within its size group that have an established local switching support 
amount; 

(B) The AHCF administrator shall calculate the local switching 
support factor for each ETCs study area by taking the 1996 weighted 
dialed equipment minute factor as supplied in the NECA submission 
of 1999 Network Data Management — Usage filed on March 1, 2001, 
with the FCC and subtracting the 1996 interstate dialed equipment 
minute factor as supplied in the NECA submission of 1999 network 
usage data filed on March 1, 2001, with the FCC. This result shall be 
called the "local switching support factor". For each ETC that does 
not have an individually calculated weighted dialed equipment 
minute factor and an interstate dialed equipment minute factor, the 
AHCF administrator shall calculate a weighted dialed equipment 
minute factor and an interstate dialed equipment minute factor by 
using an average of all ETCs within its size group that have an 
established weighted dialed equipment minute factor and an inter- 
state dialed equipment minute factor; 

(C) The AHCF administrator shall then calculate the total LSS 
revenue requirement for each ETC by dividing the local switching 
support amount calculated in subdivision (e)(4)(C)(ii)(b)(l)(A) of this 
section by the local switching support factor as calculated in subdi- 
vision (e)(4)(C)(ii)(b)(l)(B) of this section; 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 130 

(D) The AHCF administrator shall then divide the total LSS 
revenue requirement for each ETC by the total number of loops in the 
ETC's study area as of December 31 of the preceding year that are 
eligible for support for federal universal service; 

(E) The AHCF administrator shall then calculate the local switch- 
ing support (LSS) to be recovered by multiplying the total LSS 
revenue requirement per loop as calculated in subdivision 
(e)(4)(C)(ii)(b)(l)(D) of this section by fifteen percent (15%); and 

(F) The sum of subdivision (e)(4)(C)(ii)(b)(l)(E) of this section as to 
each ETC, if positive, shall be the ETC's local switching support 
element. 

(2) If a request for support is made by an ETC that does not have 
switching support calculated by NEC A, the commission shall develop 
a proxy method to be used to calculate such an ETC's local switching 
support. The sum of the calculation for each ETC from the proxy 
method, if positive, shall be the ETC's local switching support 
element. 

(c)(1) For ETCs with AHCF support based on loops, the AHCF 
administrator shall determine each ETC's local loop support by 
multiplying the number of loops of the ETC as of December 31 of the 
preceding year that are eligible for federal universal service support 
by the ETC's loop support element, if applicable, and the AHCF 
administrator shall determine the ETC's local switching support by 
multiplying the number of loops of the ETC as of December 31 of the 
preceding year that are eligible for federal universal service support 
by the ETC's local switching support element. The AHCF adminis- 
trator shall determine the uncapped AHCF support for each ETC by 
adding the sum of the ETC's total loop support, if any, and the ETC's 
total local switching support, if any. 

(2) For ETCs with AHCF support based on customers, the AHCF 
administrator shall determine the ETC's customer support element 
by multiplying the number of customers of the ETC as of December 
31 of the preceding year who are eligible for federal universal service 
support by the ETC's customer support element, if applicable, and 
the AHCF administrator shall determine the ETC's local switching 
support by multiplying the number of customers of the ETC as of 
December 31 of the preceding year who are eligible for federal 
universal service support by the ETC's local switching support 
element. The AHCF administrator shall determine the uncapped 
AHCF support for the ETC by adding the sum of the ETC's total loop 
support, if any, and the ETC's total local switching support, if any. 

(3) (A) If state or federal regulatory or legislative actions eliminate 
the publicly available elements used to calculate loop support under 
subdivision (e)(4)(C)(ii)(a)(i) of this section or local switching support 
under subdivision (e)(4)(C)(ii)(6)(l) of this section for an ETC with a 
total customer access base or total customer base of fewer than fifteen 
thousand (15,000) lines or customers, the AHCF administrator shall 
promptly notify the commission. 



131 TELEPHONE AND TELEGRAPH COMPANIES 23-17-404 

(B) Once notified, the commission shall open a rule-making docket 
to replace the eliminated elements used to calculate loop support 
under subdivision (e)(4)(C)(ii)(a)(7) of this section or local switching 
support under subdivision (e)(4)(C)(ii)(6)(l) of this section. 

(C) Until alternate elements are adopted by the commission, the 
AHCF administrator shall use the previous determinations as used 
during the year immediately preceding the year the elements were 
eliminated to calculate loop support under subdivision 
(e)(4)(C)(ii)(a)(i) of this section or local switching support under 
subdivision (e)(4)(C)(ii)(6)(2) of this section. 

(D) Upon commission adoption of the replacement elements, the 
commission shall order the AHCF administrator to incorporate those 
replacement elements into the previously existing method used by 
the AHCF administrator to calculate loop support under subdivision 
(e)(4)(C)(ii)(a)(i) of this section or local switching support under 
subdivision (e)(4)(C)(ii)(6)(i) of this section. The calculations shall be: 

(i) Based on the fully allocated cost of the affected ETCs; and 
(ii) Effective as of the next annual determination process date, as 

established by the commission. 

(iii)(a) For ETCs with five hundred thousand (500,000) lines or 

more on or after December 31, 2010, support shall be determined 

using the following procedure: 

(1) Using the FCC's synthesis model available from USAC or an 
equivalent replacement model, the AHCF administrator shall take 
the ETCs average monthly per-line cost for each eligible wire center 
and subtract the FCC cost model benchmark. The result of the line 
cost minus the benchmark is the available per-line high-cost support 
available for that wire center; 

(2) The AHCF administrator then shall multiply the available 
high-cost support for each eligible wire center by the number of lines 
reported to the AHCF administrator by the carrier as of December 31 
of the preceding year. Eligible wire centers shall be wire centers with 
three thousand (3,000) access lines or less as of March 19, 2007; and 

(3) The total of the calculations by the AHCF administrator for all 
eligible wire centers shall be the high-cost support available to the 
ETC, as limited by cap restrictions. 

(b) The support provided by the AHCF shall be calculated as an 
annual amount paid in equal monthly payments and recalculated 
annually by the AHCF administrator in compliance with this section 
and the commission's rules and procedures. 

(iv) In the event that an element used to determine AHCF support 
is materially changed or eliminated, the AHCF administrator shall 
use an equivalent or similar element in calculating the AHCF 
support in subdivisions (e)(4)(C)(ii) and (hi) of this section. 

(v) The AHCF shall be phased in over a five-year transition period. 
The phase-in shall transition from the AUSF revenue replacement 
mechanism to the AHCF high-cost support mechanism for ETCs with 
a total customer access base of under fifteen thousand (15,000) access 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 132 

lines. ETCs with a total customer access base of over fifteen thousand 
(15,000) access lines shall not participate in the transition or in the 
funding of the transition, and any calculations related to the transi- 
tion apply only to the size group with a total customer access base of 
under fifteen thousand (15,000) access lines. The AHCF administra- 
tor shall apply the AHCF transition period for the ETCs as follows: 

(a) In year one of the transition period, the administrator shall 
first calculate the total support due an ETC from the AHCF. If the 
AHCF calculation for the ETC exceeds the revenue the ETC received 
from the AUSF in the 2007 revenue base, the AHCF calculation shall 
be the ETCs uncapped unreduced AHCF support. If the ETCs 
calculated AHCF support is less than the ETCs 2007 revenue base, 
then the ETCs AHCF uncapped support in year one shall be the 
ETCs AHCF calculated support plus eighty-nine percent (89%) of the 
difference between the ETCs 2007 revenue base and the ETCs 
calculated AHCF support; 

(b) In year two of the transition period, the administrator shall 
first calculate the total support due an ETC from the AHCF. If the 
AHCF calculation for the ETC exceeds the revenue the ETC received 
from the AUSF in the 2007 revenue base, the AHCF calculation shall 
be the ETCs uncapped unreduced AHCF support. If the ETCs 
calculated AHCF support is less than the ETCs 2007 revenue base, 
the ETCs AHCF uncapped support in year two shall be the ETCs 
AHCF calculated support plus seventy-eight percent (78%) of the 
difference between the ETCs 2007 revenue base and the ETCs 
calculated AHCF support; 

(c) In year three of the transition period, the administrator shall 
first calculate the total support due an ETC from the AHCF. If the 
AHCF calculation for the ETC exceeds the revenue the ETC received 
from the AUSF in the 2007 revenue base, the AHCF calculation shall 
be the ETCs uncapped unreduced AHCF support. If the ETCs 
calculated AHCF support is less than the ETCs 2007 revenue base, 
the ETCs AHCF uncapped support in year three shall be the ETCs 
AHCF calculated support plus sixty-seven percent (67%) of the 
difference between the ETCs 2007 revenue base and the ETCs 
calculated AHCF support; 

(d) In year four of the transition period, the administrator shall 
first calculate the total support due an ETC from the AHCF. If the 
AHCF calculation for the ETC exceeds the revenue the ETC received 
from the AUSF in the 2007 revenue base, the AHCF calculation shall 
be the ETCs uncapped unreduced AHCF support. If the ETCs 
calculated AHCF support is less than the ETCs 2007 revenue base, 
the ETCs AHCF uncapped support in year four shall be the ETCs 
AHCF calculated support plus fifty-one percent (51%) of the differ- 
ence between the ETCs 2007 revenue base and the ETCs calculated 
AHCF support; 

(e) In year five of the transition period, the administrator shall 
first calculate the total support due an ETC from the AHCF. If the 



133 TELEPHONE AND TELEGRAPH COMPANIES 23-17-404 

AHCF calculation for the ETC exceeds the revenue the ETC received 
from the AUSF in the 2007 revenue base, the AHCF calculation shall 
be the ETC's uncapped unreduced AHCF support. If the ETC's 
calculated AHCF support is less than the ETC's 2007 revenue base, 
the ETC's AHCF uncapped support in year five shall be the ETC's 
AHCF calculated support plus thirty-four percent (34%) of the 
difference between the ETC's 2007 revenue base and the ETC's 
calculated AHCF support; and 

(f) After the five-year transition period, the AHCF administrator 
shall calculate each ETC's support by first calculating each ETC's 
uncapped AHCF support. If the total calculated support to all ETCs 
within a size group is less than the capped amount of the size group's 
part of the total AHCF, each ETC within the size group shall be 
entitled to its total calculated AHCF support. 

(D)(i)(a) The cost to transition from the 2007 revenue base to the 
AHCF during the five-year transition period shall be funded by a 
combination of sources. The AHCF administrator shall reserve three 
million dollars ($3,000,000) from the existing AUSF surplus to assist 
in funding the transition period. The specific annual amounts the 
AHCF administrator shall use from the surplus for the transition 
period shall be as follows: 

(1) One million dollars ($1,000,000) for year one; 

(2) Seven hundred fifty thousand dollars ($750,000) for year two; 

(3) Seven hundred fifty thousand dollars ($750,000) for year three; 

(4) Two hundred fifty thousand dollars ($250,000) for year four; 
and 

(5) Two hundred fifty thousand dollars ($250,000) for year five. 
(b) In the event the total transition cost in a year is less than the 

amount scheduled to be used that year from the AUSF surplus, that 
excess amount shall be used to assist in funding the transition in the 
subsequent year or years. 

(ii)(a) The AHCF administrator shall calculate the total support 
necessary to fully fund the transition cost for each specific calendar 
year. 

(b) If the transition support from the surplus fully funds the 
transition costs, the AHCF administrator shall add each ETC's 
calculated AHCF support to any transition support to which the ETC 
may be entitled, and that amount shall be the ETC's uncapped AHCF 
support. 

(c) If the surplus does not fully fund the transition costs, then each 
ETC participating in the size group with a total customer access base 
of under fifteen thousand (15,000) access lines that is not receiving 
transition funds shall pay a pro rata share of the remaining transi- 
tion costs based upon a formula using total increase in support 
received by all ETCs with an increase from the 2007 revenue base to 
AHCF levels as the denominator and the specific ETC's increase from 
the 2007 revenue base to the AHCF support as the numerator. The 
AHCF administrator shall use that formula to calculate the pro rata 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 134 

share of each ETC that is not receiving transition funds to assist in 
fully funding the transition costs. However, an ETC shall not be 
required to pay transition funding that would lower its uncapped 
payment from the AHCF below the ETC's funding received from the 
AUSF in the 2007 revenue base. 

(iii) The annual transition funds provided from the AUSF surplus 
and the funds used in the transition are supplemental funds, are in 
addition to the capped funds, and are not to be considered when a cap 
is calculated at any time. 

(E) The AHCF administrator shall apply the cap on the total 
AHCF and upon the specific size groups established within the AHCF 
annually. During the transition, the cap shall be applied as follows: 

(i)(a)(l) The total AHCF support that is calculated to be due ETCs 
within each size group of the AHCF shall be calculated prior to the 
consideration of the transition funding. If total support due a size 
group, prior to transition funding, does not exceed that size group's 
AHCF cap, the AHCF administrator shall pay that size group's full 
AHCF support amount. 

(2) If total support, using the AHCF formula for recipients of the 
specific size group exceeds the cap, the administrator shall determine 
the amount that the total calculated AHCF support exceeds that size 
group's cap. 

(b) To reduce each size group's authorized support to conform to 
the size group's cap, the AHCF administrator shall determine total 
calculated AHCF support to each ETC within the size group and shall 
add each ETC's transition payment, if any, to establish each ETC's 
total calculated support within the size group. The AHCF adminis- 
trator shall then use the total calculated support due all ETCs within 
the size group as the denominator and the amount the size group's 
AHCF calculation exceeds the cap as the numerator. The adminis- 
trator shall then subtract from each ETC's total calculated support a 
pro rata portion, using the fraction established herein to reduce 
AHCF funding to the capped amount, based upon each ETC's total 
calculated support, to reduce the size group's support level to the 
capped AHCF amount; and 

(ii)fe) The funds available for distribution to ETCs from the AHCF 
shall not exceed and are capped at twenty-two million dollars 
($22,000,000) per year, the total capped fund. Cost of administrating 
the AHCF shall first be deducted from the total capped fund prior to 
allocation of funding to the ETCs. Transition funds used from the 
surplus during the five-year transition period are supplemental and 
are not subject to any cap. The annual period to be used by the AHCF 
administrator to adjust support levels and upon which to apply any 
cap shall be on the calendar year. In addition to the total fund cap, the 
funds available from the AHCF shall also be capped based upon size 
groups using access lines for loop-based ETCs and customers for 
customer-based ETCs. Size grouping is used to ensure funds are 
targeted to areas most needing high-cost assistance. For the purpose 



135 TELEPHONE AND TELEGRAPH COMPANIES 23-17-404 

of calculating the size grouping caps, total customer access base shall 
be used for loop-based ETCs and total customers for customer-based 
ETCs. 

(b) For all ETCs with a total customer access base or total 
customer base of five hundred thousand (500,000) or more access 
lines or customers on or after December 31, 2010, the size group cap 
shall be thirteen and one-half percent (13.5%) of the total capped 
fund. 

(c) For all ETCs with a total customer access base or total 
customer base of one hundred fifty thousand (150,000) or more access 
lines or customers and fewer than five hundred thousand (500,000) 
access lines or customers on December 31, 2010, the size group cap 
shall be thirteen and one-half percent (13.5%) of the total capped 
fund. 

(d) For all ETCs with a total customer access base or total 
customer base of fifteen thousand (15,000) or more access lines or 
customers and fewer than one hundred fifty thousand (150,000) 
access lines or customers on December 31, 2010, the size group cap 
shall be two percent (2%) of the total capped fund. 

(e) For all ETCs with a total customer access base or total 
customer base of fewer than fifteen thousand (15,000) access lines or 
customers, the size group cap shall be seventy-one percent (71%) of 
the total capped fund. 

(5)(A)(i) The commission shall establish by regulation a grant pro- 
gram to make grants available to eligible telecommunications carri- 
ers for the extension of facilities to citizens who are not served by wire 
line services of an eligible telecommunications carrier. Grants may be 
requested by an eligible telecommunications carrier or citizens who 
are not served, or both. 

(ii) The commission shall delegate to a trustee the administration, 
collection, and distribution of the Extension of Telecommunications 
Facilities Fund in accordance with the rules and procedures estab- 
lished by the commission. The trustee shall enforce and implement 
all rules and directives governing the funding, collection, and eligi- 
bility for the Extension of Telecommunications Facilities Fund. 

(B)(i) In establishing regulations for the grant program, the com- 
mission shall consider demonstrated need, the length of time the 
citizens have not been served, the households affected, the best use of 
the funds, and the overall need for extensions throughout the state. 

(ii) The commission may require each potential customer to be 
served by the extension of facilities to pay up to two hundred fifty 
dollars ($250) of the cost of extending facilities. 

(C) The plan shall be funded by customer contributions and by the 
Extension of Telecommunications Facilities Fund established by 
subdivision (e)(4)(B)(ii)(aJ of this section. 

(D)(i) The commission shall provide quarterly reports to the Leg- 
islative Council. The reports shall include, but shall not be limited to, 
the number of requests for grants, the number of grants awarded, the 
amount awarded, and the number of additional customers served. 



23-17-404 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



136 



(ii) The commission shall notify members of the General Assembly 
of grants made in their districts. 

(E) In order to allow time for potential applicants to request 
grants, no grants shall be awarded for three (3) months after the 
effective date of the rules establishing the program. 



History. Acts 1997, No. 77, § 4; 2001, 
No. 907, § 4; 2001, No. 1771, § 1; 2001, 
No. 1842, § 1; 2003, No. 1788, § 7; 2007, 
No. 385, §§ 1, 4; 2011, No. 290, §§ 2-4; 
2011, No. 594, § 2. 

A.C.R.C. Notes. Acts 2005, No. 2017, 
§ 16, provided: "To ensure that telecom- 
munications rates are reasonable and af- 
fordable, the Arkansas Public Service 
Commission should take all reasonable 
steps necessary to maintain and reduce 
Arkansas Universal Service Fund (AUSF) 
administrative expenses and avoid man- 
dating changes in telecommunications 
services that could increase AUSF assess- 
ments which would result in higher AUSF 
surcharges to customers." 

Acts 2007, No. 385, § 1, provided: 

"Legislative findings. 

"The General Assembly finds that: 

"(1) The development of an administra- 
tively streamlined universal service fund 
based upon high cost support is important 
public policy; 

"(2) It is administratively efficient to 
use financial data submitted by eligible 
telecommunications companies to federal 
agencies, made under penalty of law, and 
when appropriate, cost proxies, for the 
high-cost support mechanism, to be called 
the "Arkansas High Cost Fund", thereby 
eliminating the need for extensive finan- 
cial review and the high administrative 
costs created by such reviews; 

"(3) A five-year transition from the Ar- 
kansas Universal Service Fund to the 
Arkansas High Cost Fund is important 
public policy due to the shift from a rev- 
enue replacement fund based upon cur- 
rent changes to a high-cost fund using 
financial data that is two (2) or more years 
old; 

"(4) Due to the complex nature and 
ever-changing administration of telecom- 
munications at the federal level, potential 
changes in how access charges are col- 
lected could disrupt support for eligible 
telecommunications companies serving 
rural areas; 

"(5) Eligible telecommunications com- 
pany members of the AJCCLP are more 



adversely affected by sudden changes in 
regulation, access charges, and statutory 
changes; and" 

Acts 2007, No. 785, § 15, provided: "AR- 
KANSAS UNIVERSAL SERVICE FUND. 
To ensure that telecommunications rates 
are reasonable and affordable, the Arkan- 
sas Public Service Commission should 
take all reasonable steps necessary to 
reduce the Arkansas Universal Service 
Fund (AUSF), and avoid mandating any 
additional charges or expenses for tele- 
communications services that could in- 
crease AUSF assessments which would 
result in higher AUSF surcharges to cus- 
tomers." 

Acts 2009, No. 823, § 12, provided: "AR- 
KANSAS HIGH COST FUND. To ensure 
that telecommunications rates are reason- 
able and affordable, the Arkansas Public 
Service Commission should take all rea- 
sonable steps necessary to reduce the Ar- 
kansas High Cost Fund (AHCF), and 
avoid mandating any additional charges 
or expenses for telecommunications ser- 
vices that could increase AHCF assess- 
ments which would result in higher AHCF 
surcharges to customers." 

Acts 2010, No. 31, § 12, provided: "AR- 
KANSAS HIGH COST FUND. To ensure 
that telecommunications rates are reason- 
able and affordable, the Arkansas Public 
Service Commission should take all rea- 
sonable steps necessary to reduce the Ar- 
kansas High Cost Fund (AHCF), and 
avoid mandating any additional charges 
or expenses for telecommunications ser- 
vices that could increase AHCF assess- 
ments which would result in higher AHCF 
surcharges to customers." 

Acts 2011, No. 577, § 14, provided: "AR- 
KANSAS HIGH COST FUND. To ensure 
that telecommunications rates are reason- 
able and affordable, the Arkansas Public 
Service Commission should take all rea- 
sonable steps necessary to reduce the Ar- 
kansas High Cost Fund (AHCF), and 
avoid mandating any additional charges 
or expenses for telecommunications ser- 
vices that could increase AHCF assess- 



137 TELEPHONE AND TELEGRAPH COMPANIES 23-17-405 

ments which would result in higher AHCF change ... services under § 23-17-408(c)" 

surcharges to customers." at the beginning of (e)(l)(B)(i); and substi- 

Amendments. The 2007 amendment tuted "Except in any exchange in which 

rewrote the section. the electing company is authorized under 

The 2011 amendment by No. 290 added § 23-17-407(d) to determine the rates for 

(e)(4)(C)(ii)(c)(3); inserted "on or after De- basic local exchange service and switched- 

cember 31, 2010" in (e)(4)(C)(m)(a) and access ser vices pursuant to § 23-17- 

ie ^ ( ^ m / ^i^^ "^^cember 408(c)" for "In any event" in (e)(l)(B)(ii). 
31, 2010" in (e)(4)(E)(ii)(c) and (d). J 

The 2011 amendment by No. 594 subdi- 
vided (e)(1)(B); added "Except in an ex- 

RESEARCH REFERENCES 

U. Ark. Little Rock L. Rev. Survey of Survey of Legislation, 2001 Arkansas 

Legislation, 2001 Arkansas General As- General Assembly, Tax Law, 24 U. Ark. 

sembly, Regulated Industries, 24 U. Ark. Little Rock L. Rev. 613. 
Little Rock L. Rev. 595. 

23-17-405. Eligible telecommunications carrier. 

(a) The incumbent local exchange carrier, its successors and assigns, 
that owns, maintains, and provides facilities for universal service 
within a local exchange area on February 4, 1997, shall be the eligible 
telecommunications carrier within the local exchange area. 

(b) The Arkansas Public Service Commission, consistent with 47 
U.S.C. § 214(e)(2), after reasonable notice and hearing, may designate 
other telecommunications providers to be eligible for federal Universal 
Service Fund or AHCF support under the following conditions: 

(1)(A) The other telecommunications provider accepts the responsi- 
bility to provide service in response to any reasonable request from 
customers in an incumbent local exchange carrier's local exchange 
area using its own facilities or a combination of its own facilities and 
resale of another carrier's services. 

(B) High-cost support under this section will not begin until the 
telecommunications provider offers to provide service in response to 
all reasonable requests for service from customers in its service area; 

(2) The telecommunications provider may only receive funding for 
services provided in the eligible telecommunications carrier's study 
area using its own facilities or a combination of its own facilities and 
another carrier's facilities; 

(3) The telecommunications provider will not receive AHCF funding 
at a level higher than the level of funding received by the incumbent 
local exchange carrier in the same area; 

(4) The telecommunications provider advertises the availability and 
the charges for the services, using media of general distribution; and 

(5) It is determined by the commission that the designation is in the 
public interest. 

(c) In exchanges or wire centers where the commission has desig- 
nated more than one (1) eligible telecommunications carrier, the 
commission shall permit a local exchange carrier to relinquish its 
designation as an eligible telecommunications carrier, consistent with 



23-17-405 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



138 



47 U.S.C. § 214(e)(4), upon a finding that at least one (1) eligible 

telecommunications carrier will continue to serve the area. 

(d)(1)(A) For the entire area served by a rural telephone company, 
excluding tier one companies, for the purpose of the AHCF and the 
federal Universal Service Fund, there shall be only one (1) wireline 
eligible telecommunications carrier which shall be the incumbent 
local exchange carrier that is a rural telephone company. 

(B) Multiple wireless eligible telecommunications carriers may be 
designated in areas served by rural telephone companies. 
(2) The rural telephone company may elect to waive its right to be 

the only wireline eligible telecommunications carrier within the local 

exchange area by filing notice with the commission. 

(e) To provide universal services, an eligible telecommunications 

carrier may use: 

(1) Commercial mobile services; 

(2) Voice over Internet Protocol; and 

(3) Any other technology that provides service that is the functional 
equivalent of commercial mobile services or Voice over Internet Proto- 
col. 



History. Acts 1997, No. 77, § 5; 2007, 
No. 385, § 5; 2009, No. 191, § 1. 

A.C.R.C. Notes. Acts 2007, No. 385, 
§ 1, provided: 

"Legislative findings. 

"The General Assembly finds that: 

"(1) The development of an administra- 
tively streamlined universal service fund 
based upon high cost support is important 
public policy; 

"(2) It is administratively efficient to 
use financial data submitted by eligible 
telecommunications companies to federal 
agencies, made under penalty of law, and 
when appropriate, cost proxies, for the 
high-cost support mechanism, to be called 
the "Arkansas High Cost Fund", thereby 
eliminating the need for extensive finan- 
cial review and the high administrative 
costs created by such reviews; 

"(3) A five-year transition from the Ar- 
kansas Universal Service Fund to the 
Arkansas High Cost Fund is important 
public policy due to the shift from a rev- 
enue replacement fund based upon cur- 
rent changes to a high-cost fund using 
financial data that is two (2) or more years 
old; 

"(4) Due to the complex nature and 
ever-changing administration of telecom- 
munications at the federal level, potential 
changes in how access charges are col- 
lected could disrupt support for eligible 



telecommunications companies serving 
rural areas; 

"(5) Eligible telecommunications com- 
pany members of the AICCLP are more 
adversely affected by sudden changes in 
regulation, access charges, and statutory 
changes; and" 

Amendments. The 2007 amendment, 
in (b), substituted "The" for "Where the 
incumbent local exchange carrier receives 
AUSF support, except in areas served by 
rural telephone companies, the" and sub- 
stituted "federal Universal Service Fund 
or AHCF support" for "high cost support 
pursuant to § 23-17-404"; inserted "in re- 
sponse to any reasonable request from" for 
"to all" in (b)(1)(A); in (b)(1)(B), deleted 
"has facilities in place and" following "pro- 
vider" and substituted "provide service in 
response to all reasonable requests for 
service from" for "serve all"; substituted 
"services provided in the eligible telecom- 
munications carrier's study area using its 
own facilities or a combination of its own 
facilities and another carrier's facilities" 
for "the portion of its facilities that it owns 
and maintains" in (b)(2); substituted 
"AHCF" for "AUSF" in (b)(3); added the 
(d)(1)(A) designation; in (d)(1)(A), substi- 
tuted "AHCF" for "AUSF" and inserted 
"wireline" preceding "eligible"; added 
(d)(1)(B); inserted "wireline" preceding 
"eligible" in (d)(2); and deleted (d)(3). 

The 2009 amendment rewrote (e). 



139 TELEPHONE AND TELEGRAPH COMPANIES 23-17-407 

23-17-407. Regulation of rates for basic local exchange service 
and switched-access service of electing companies. 

(a)(1) The rates for basic local exchange service and switched-access 
services that were in effect in the date twelve (12) months prior to the 
date of filing of a notice of election by a local exchange carrier pursuant 
to § 23-17-406 shall be the maximum that the electing local exchange 
carrier may charge for the services for a period of three (3) years after 
the date of filing, excluding rate increases ordered by the Arkansas 
Public Service Commission pursuant to § 23-17-404. 
(2)(A) An electing company may decrease or, subsequent to a de- 
crease, increase up to the rate that was effective at the time of 
election pursuant to this section. 

(B) The rate changes shall be effective immediately, without com- 
mission approval, by filing a tariff or notice with the commission. 
(b)(1) After the expiration of the three-year period, the rates for basic 
local exchange services and switched-access services, excluding the 
intrastate carrier common line charge, may be adjusted by the electing 
company filing a price list with the commission, as long as: 

(A) The rates remain at or below the inflation-based rate cap; or 

(B) The rate increase results from the provision of extended area 
services required as the result of customer election under commission 
rules. 

(2) Inflation shall be measured by the year-over-year percent change 
in the gross domestic product price index calculated by the United 
States Department of Commerce, or any successor to the index. 

(3) The electing company is authorized to adjust the rate cap for each 
basic local exchange service and switched-access service by seventy-five 
percent (75%) of this inflation measure, adjusted for exogenous changes 
specified in subsection (e) of this section, and excluding rate increases 
ordered by the commission pursuant to § 23-17-404. 

(4) The rate cap may only be adjusted one (1) time each twelve (12) 
months beginning at the expiration of the three-year period after the 
date of initial filing to be regulated pursuant to this section and 
§§ 23-17-406 and 23-17-408. 

(c) As long as an electing company is in compliance with subsections 
(a) and (b) of this section, such rates are deemed just and reasonable. 

(d) Notwithstanding the provisions of this section, if, at any time 
following the date of election pursuant to this section, another telecom- 
munications provider is providing basic local exchange service or 
switched-access service within an electing company's local exchange 
area, the electing company within any exchange of the electing com- 
pany in which another telecommunications provider is providing these 
services may commence determining its rates for basic local exchange 
service and switched-access services in the same manner that it 
determines its rates for services other than basic local exchange service 
and switched-access service, pursuant to § 23-17-408(c). 

(e) As used in this section, the term "exogenous change" means a 
cumulative impact on a local exchange carrier's intrastate regulated 



23-17-409 PUBLIC UTILITIES AND REGULATED INDUSTRIES 140 

revenue, expenses, or investment of more than three percent (3%) over 
a twelve-month period, that is attributable to changes in federal, state, 
or local government mandates, rules, regulations, or statutes. 

History. Acts 1997, No. 77, § 7; 2003, Arkansas High Cost Fund is important 

No. 1764, § 3; 2007, No. 385, § 6. public policy due to the shift from a rev- 

A.C.R.C. Notes. Acts 2007, No. 385, enue replacement fund based upon cur- 

§ 1, provided: ren t changes to a high-cost fund using 

"Legislative findings financial data that is two (2) or more years 

The General Assembly finds that: ^. 

"(1) The development of an administra- «)n n , ,, ■, . , 
\ , ,. J , . n j (4) Due to the complex nature and 
tively streamlined universal service fund , . , . . , r .. ,., , 
based upon high cost support is important ever-changing administration of telecom- 
public policy mumcations at the federal level, potential 

"(2) It is 'administratively efficient to changes in how access charges are col- 
use financial data submitted by eligible lected could . disrupt support for eligible 
telecommunications companies to federal telecommunications companies serving 
agencies, made under penalty of law, and rural areas; 

when appropriate, cost proxies, for the "(5) Eligible telecommunications com- 

high-cost support mechanism, to be called pany members of the AICCLP are more 

the "Arkansas High Cost Fund", thereby adversely affected by sudden changes in 

eliminating the need for extensive finan- regulation, access charges, and statutory 

cial review and the high administrative changes; and" 

costs created by such reviews; Amendments. The 2007 amendment 

"(3) A five-year transition from the Ar- deleted "the three year anniversary of 

kansas Universal Service Fund to the following "following" in (d). 

23-17-409. Authorization of competing local exchange carriers. 

(a)(1)(A) Consistent with the federal act and the provisions of § 23- 
17-410, the Arkansas Public Service Commission is authorized to 
grant certificates of convenience and necessity to telecommunications 
providers authorizing them to provide telecommunications services, 
including basic local exchange service or switched-access service, or 
both, to an incumbent local exchange carrier's local exchange area if 
and to the extent that the applications otherwise comply with state 
law, designate the geographic areas proposed to be served by the 
applicants, and the applicants demonstrate that they possess the 
financial, technical, and managerial capacity to provide the compet- 
ing services. 

(B) No telecommunications provider shall operate as a CLEC in 
this state without first obtaining from the commission a certificate of 
public convenience and necessity. 

(2) Competing local exchange carriers shall be required to maintain 
a current tariff or price list with the commission and to make prices and 
terms of service available for public inspection. 

(3) Retail prices of competing local exchange carriers shall not 
require prior review or approval by the commission. 

(b)(1) Except as provided in subdivision (b) of this section, a govern- 
ment entity may not provide, directly or indirectly, basic local exchange, 
voice, data, broadband, video, or wireless telecommunication service. 

(2) After reasonable notice to the public and a public hearing, a 
governmental entity owning an electric utility system or television 



141 TELEPHONE AND TELEGRAPH COMPANIES 23-17-409 

signal distribution system may provide, directly or indirectly, voice, 
data, broadband, video, or wireless telecommunications service and 
make any telecommunications capacity or associated facilities that it 
now owns, or may hereafter construct or acquire, available to the public 
upon terms and conditions as may be established by its governing 
authority, except the government entity may not use the telecommuni- 
cations capacity or facilities to provide, directly or indirectly, basic local 
exchange service. 

(3) Any restriction contained in this subsection shall not be appli- 
cable to the provision of telecommunications services or facilities to the 
extent used solely for 911, E911, or other emergency and law enforce- 
ment services, or for the provision of data, broadband, or nonentertain- 
ment video telecommunications services or facilities by or to a medical 
institution or institution of higher education to its students, faculty, 
staff, or patients, as the provision relates to academic, research, and 
health care information technology applications under the Arkansas 
Information Systems Act of 1997, § 25-4-101 et seq. 

(4) This section does not prohibit a governmental entity from pur- 
chasing voice, data, broadband, video, or wireless telecommunications 
services, directly or indirectly, from a private provider through a 
contract administered and services managed by the Department of 
Information Systems under the Arkansas Information Systems Act of 
1997, § 25-4-101 et seq. 

(c) A governmental entity that operates an electric utility system 
may deny any telecommunications provider access to its electric utility 
poles, ducts, conduits, or rights-of-way on a nondiscriminatory basis 
when there is insufficient capacity and for reasons of safety, reliability, 
and generally applicable engineering purposes. 

(d)(1) Except to the extent required by the federal act and this 
subchapter, the commission shall not require an incumbent local 
exchange carrier to negotiate resale of its retail telecommunications 
services, to provide interconnection, or to sell unbundled network 
elements to a competing local exchange carrier for the purpose of 
allowing the competing local exchange carrier to compete with the 
incumbent local exchange carrier in the provision of basic local ex- 
change service. 

(2) Promotional prices, service packages, trial offerings, or tempo- 
rary discounts offered by the local exchange carrier to its end-user 
customers are not required to be available for resale. 

(e) The prices for unbundled network elements shall include the 
actual costs, including an allocation of joint and common costs and a 
reasonable profit. 

(f) As provided in 47 U.S.C. §§ 251 and 252, the commission's 
authority with respect to interconnection, resale, and unbundling is 
limited to the terms, conditions, and agreements pursuant to which an 
incumbent local exchange carrier will provide interconnection, resale, 
or unbundling to a CLEC for the purpose of the CLECs competing with 
the incumbent local exchange carrier in the provision of telecommuni- 
cations services to end-user customers. 



23-17-411 PUBLIC UTILITIES AND REGULATED INDUSTRIES 142 

(g)(1) As permitted by the federal act, the commission shall approve 
resale restrictions that prohibit resellers from purchasing retail local 
exchange services offered by a local exchange carrier to residential 
customers and reselling those retail services to nonresidential custom- 
ers, or aggregating the usage of multiple customers on resold local 
exchange services, or any other reasonable limitation on resale to the 
extent permitted by the federal act. 

(2) The wholesale rate of any existing retail telecommunications 
services provided by local exchange carriers that are not exempt from 
47 U.S. C. § 251(c) and that are being sold for the purpose of resale shall 
be the retail rate of the service less any net avoided costs due to the 
resale. 

(3) The net avoided costs shall be calculated as the total of the costs 
that will not be incurred by the local exchange carrier due to its selling 
the service for resale less any additional costs that will be incurred as 
a result of selling the service for the purpose of resale. 

(h) Incumbent local exchange carriers shall provide competing local 
exchange carriers, at reasonable rates, nondiscriminatory access to 
operator services, directory listings and assistance, and 911 service only 
to the extent required in the federal act. 

(i)(l) The commission shall approve any negotiated interconnection 
agreement or statement of generally available terms filed pursuant to 
the federal act unless it is shown by clear and convincing evidence that 
the agreement or statement does not meet the minimum requirements 
of47U.S.C. § 251. 

(2) In no event shall the commission impose any interconnection 
requirements that go beyond those requirements imposed by the 
federal act or any interconnection regulations or standards promul- 
gated under the federal act. 

(j) In the event the commission is requested to arbitrate any open 
issues pursuant to 47 U.S.C. § 252, the parties to the arbitration 
proceeding shall be limited to the persons or entities negotiating the 
agreement. 

History. Acts 1997, No. 77, § 9; 2003, communication"; in (b)(2), inserted "pro- 
No. 1788, § 8; 2011, No. 1050, § 1. vide, directly or indirectly, voice, data, 

Amendments. The 2011 amendment, broadband, video, or wireless telecommu- 

in (b)(1), inserted "Except as provided in nications service, and" and "construct or" 

subdivision (b) of this section" and "voice preceding "acquire"; rewrote (b)(3); and 

data, broadband, video, or wireless tele- added (b)(4). 

23-17-411. Regulatory reform. 

(a) Regarding the earnings, rates of return, or rate-base calculation 
of any electing company, any incumbent local exchange carrier that has 
filed notice in accordance with § 23-17-412, or any competing local 
exchange carrier, and provided that all such companies and carriers 
otherwise comply with the applicable ratemaking provisions of this 
subchapter, the Arkansas Public Service Commission shall not: 



143 TELEPHONE AND TELEGRAPH COMPANIES 23-17-411 

(1) Require the filing of any financial report, statement, or other 
document for the purpose of reviewing, monitoring, or regulating rate 
base, earnings, or rates of return; or 

(2) Conduct any investigation of rate base, earnings, or rates of 
return. 

(b) Notwithstanding the provisions of this subchapter, a rate group 
reclassification of an exchange from one (1) rate group to another 
occurring as a result of access line growth or loss of exchange access 
arrangements shall be allowed by the commission on request of a local 
exchange carrier. 

(c) Consistent with the policy of telecommunications competition 
that is implemented with this subchapter, other than the commission's 
promulgation of rules and regulations required by this subchapter, the 
commission shall promulgate no new rule or regulation that increases 
regulatory burdens on telecommunications service providers, except 
upon a showing that the benefits of such rule or regulation are clear and 
demonstrable and substantially exceed the cost of compliance by the 
affected telecommunications service providers. 

(d) Not later than one hundred eighty (180) days after February 4, 
1997, the commission shall conduct a rule-making proceeding to iden- 
tify and repeal all rules and regulations relating to the provision of 
telecommunications service which are inconsistent with, have been 
rendered unnecessary by, or have been superseded by either this 
subchapter or the federal act. 

(e) Not later than one hundred eighty (180) days after February 4, 
1997, the commission shall revise its rules so that they apply, except as 
expressly provided in this subchapter, equally to all providers of basic 
local exchange service. All future rule changes promulgated by the 
commission shall apply equally to all providers of basic local exchange 
service. 

(f)(1) In order to eliminate outdated, unnecessary, and burdensome 
laws and regulations, electing companies, incumbent local exchange 
carriers filing notice under § 23-17-412, and competing local exchange 
carriers shall not be subject to the requirements of §§ 23-2-304(a)(l), 
(7), and (8), 23-2-306, 23-2-307, 23-3-101 — 23-3-107, 23-3-112, 23-3- 
114, 23-3-118, 23-3-119(a)(2), 23-3-201, 23-3-206, 23-3-301 — 23-3-316, 
23-4-101 — 23-4-104, 23-4-107, 23-4-109, 23-4-110, 23-4-201(d), 23-4- 
401 — 23-4-405, and 23-4-407 — 23-4-419, or the commission's rules 
and regulations implementing the statutes. 

(2) Notwithstanding any other provisions of law, the commission 
shall have no jurisdiction to impose any quality of service rules and 
standards or reporting, including without limitation the commission's 
telecommunications providers rules, on any telecommunications pro- 
vider in any exchange in which an electing company is authorized 
under § 23-17-407(d) to determine the rates for basic local exchange 
service and switched-access services under § 23-17-408(c). 

(g) The commission, except as provided in this subchapter with 
respect to universal services, shall have no jurisdiction to regulate 
commercial mobile services or commercial mobile service providers. 



23-17-412 PUBLIC UTILITIES AND REGULATED INDUSTRIES 144 

(h) The commission shall establish reasonable cost proxies, which 
rural telephone companies, excluding tier one companies, may use 
without producing company-specific cost studies, when cost studies 
would otherwise be required. Use of these proxies or the adoption of 
approved rates of nonrural telephone companies by rural telephone 
companies, excluding tier one companies, shall be deemed adequate 
proof of such rural telephone company costs. 

(i) The commission may reclassify an incumbent local exchange 
carrier as a tier one company or a non-tier one company only upon 
petition by the incumbent local exchange carrier in connection with an 
increase or decrease in the number of the carrier's access lines in the 
state. 

(j)(l) The unauthorized change of a customer's service to another 
telecommunications service provider is prohibited. 

(2) To protect customers from any unauthorized changes in their 
choice of telecommunications service providers, no local exchange 
carrier shall honor a request by any person other than the customer to 
change the provider of intrastate long distance or local exchange service 
to the customer in the state, except: 

(A) Where the request is placed by a local or long distance 
company that has provided to the local exchange carrier a letter of 
agency containing clear and conspicuous disclosure of the change 
signed by the customer authorizing the change; 

(B) Where the customer affected by the change calls a toll-free 
number established by the company requesting the change to confirm 
the request for the change made in response to a contact initiated by 
the local exchange or long distance company requesting the change; 
or 

(C) Where the commission otherwise expressly authorizes. 

(3) Any telecommunications carrier that violates the verification 
procedures described in this subsection and collects charges for tele- 
communications services from the customer shall be liable to the carrier 
previously selected by the customer in an amount equal to all charges 
paid by the subscriber after the violation in accordance with the 
procedures that the commission may prescribe. 

(4) The commission is also authorized to impose civil penalties, not to 
exceed five thousand dollars ($5,000) for any such violation. 

History. Acts 1997, No. 77, § 11; 2011, Amendments. The 2011 amendment 
No. 594, § 3. added (f)(2). 

23-17-412. Optional alternative regulation of eligible telecom- 
munications companies. 

(a)(1) Telephone companies that file notice with the Arkansas Public 
Service Commission of an election to be regulated in accordance with 
the provisions of this section are authorized to determine and account 
for their respective revenues and expenses, including depreciation 
expenses, pursuant to generally accepted accounting principles and, 



145 TELEPHONE AND TELEGRAPH COMPANIES 23-17-412 

except as provided in this section, shall be subject to regulation only in 
accordance with this section and shall not be subject to any rate review 
or rate of return regulation by the commission. 

(2) The companies shall file rate lists for their telecommunications 
services which rates shall be effective upon filing, except the rates for 
basic local exchange services and switched-access services, which rates 
shall be effective upon compliance and in accordance with the proce- 
dures in this section. 

(3) Any service that is not a telecommunications service is not 
subject to regulation by the commission, and rates for the services need 
not be filed with the commission. 

(b) On the effective date of an election pursuant to this section, the 
tariffed rates of a company electing to be subject to the provisions of this 
section are deemed just and reasonable and shall continue to be deemed 
just and reasonable as long as any increases in the company's tariffed 
rates are in accordance with the provisions of this section. 

(c)(1) The company may increase its basic local exchange service 
rates after sixty (60) days' notice to all affected subscribers. 

(2) Rates for basic local exchange services may be reduced and be 
effective immediately upon filing or at a later time specified in the 
filing. 

(3) Notice by the company to its subscribers shall be by regular mail 
and may be included in regular subscriber billings and shall include the 
following: 

(A) A schedule of the proposed basic local exchange service rate 
change; 

(B) The effective date of the proposed basic local exchange service 
rate change; and 

(C) An explanation of the right of the subscriber to petition the 
commission for a public hearing on the rate increase and the 
procedure necessary to petition. 

(d) The subscriber petitions provided for in this section shall be 
prepared as follows: 

(1) Form. 

(A) The petition shall be headed by a caption, which shall contain: 
(i) The heading, "The Arkansas Public Service Commission"; 

(ii) The name of the company or cooperative seeking a change in 
basic local exchange service rates; and 
(iii) The relief sought. 

(B) A petition substantially in compliance with the form set forth 
in this subsection shall not be deemed invalid due to minor errors in 
its form; 

(2) Body. The body of the petition shall consist of three (3) numbered 
paragraphs, if applicable, as follows: 

(A) Allegations of Facts. The allegations of facts shall be stated in 
the form of ultimate facts, without unnecessary detail, upon which 
the right to relief is based. The allegations shall be stated in 
numbered subparagraphs as necessary for clarity; 



23-17-412 PUBLIC UTILITIES AND REGULATED INDUSTRIES 146 

(B) Relief Sought. The petition shall contain a brief statement of 
the amount of the change in basic local exchange service rates that is 
objected to or other relief sought; and 

(C) Petitioners. The petition shall contain the name, address, 
telephone number, and signature of each subscriber signing the 
petition. Only the subscriber in whose name the telephone service is 
listed shall be counted as a petitioner. Every signature must be dated 
and shall have been affixed to the petition within sixty (60) days 
preceding its filing with the commission. 

(e)(1) Exclusive of basic local exchange service rate changes pursu- 
ant to § 23-17-404, the commission shall have authority to review basic 
local exchange service rates set by the company only upon a formal 
petition that complies with subsection (d) of this section and that is 
signed by at least fifteen percent (15%) of all affected subscribers. 

(2) If a proper petition is presented to the commission within sixty 
(60) days after the date of notice of the rate change was sent to affected 
subscribers, the commission shall accept and file the petition and, upon 
reasonable notice, may suspend the rates and charges at issue during 
the pendency of the proceedings and reinstate the rates and charges 
previously in effect and shall hold and complete a hearing thereon 
within ninety (90) days after filing to determine if the rates as proposed 
are just and reasonable. 

(3) Within sixty (60) days after close of the hearing, the commission 
may enter an order adjusting the rates and charges at issue, except that 
the commission may not set any rate or charge below the basic local 
exchange service rates in effect at the time the new rate at issue was 
proposed. 

(4) A company subject to this section shall not increase its rates 
without the approval of the commission for six (6) months after the date 
the commission enters the order. 

(5) If the commission fails to enter any order within sixty (60) days 
after the close of the hearing, the petition shall be deemed denied and 
the rates and charges shall be deemed approved for all purposes, 
including the purposes of appeal. 

(f) Rates for switched-access services of companies that are subject to 
this section shall be determined pursuant to § 23-17-407 except as 
provided in subsection (1) of this section and § 23-17-404. 

(g) A company subject to this section may at any time file an 
application with the commission requesting the commission to pre- 
scribe just and reasonable rates for the company. Any rate so set may 
thereafter be adjusted as provided in this section. 

(h) Nothing herein shall restrict any customer's right to complain to 
the commission regarding quality of service or the commission's author- 
ity to enforce quality-of-service rules and standards that are equally 
imposed on all telecommunications providers. 

(i)(l) The commission on its own motion may review basic local 
exchange service rates of any company subject to this section if the 
company has increased the rates by more than the greater of fifteen 



147 TELEPHONE AND TELEGRAPH COMPANIES 23-17-412 

percent (15%) or two dollars ($2.00) per access line per month within 
any consecutive twelve-month period, excluding rate increases: 

(A) Ordered by the commission pursuant to § 23-17-404; or 

(B) Resulting from the provision of extended area services re- 
quired as the result of customer election under commission rules. 

(2) The commission shall hold and complete a hearing on the rates 
within ninety (90) days after first giving notice of the hearing to the 
company to determine if the rates as proposed are just and reasonable. 

(3) Within sixty (60) days after close of the hearing, the commission 
may enter an order adjusting the rates and charges at issue, except that 
the commission may not require the company to set any rate or charge 
below the greater of the rates in effect at the time of the filing of the 
increase or the actual cost of providing such service as established by 
evidence received at the hearing. 

(4) In the order, the commission may order a refund of amounts 
collected in excess of the rates and charges as approved at the hearing, 
which may be paid as a credit against billings for future services. 

(5) If the commission fails to enter any order within sixty (60) days 
after the close of the hearing, the rates and charges shall be deemed 
approved for all purposes, including for purposes of appeal. 

(j)(l) For purposes of this section, the commission may not require a 
company that is subject to this section to set its rates below the actual 
cost of the company providing the service. 

(2) If requested by the company, the actual cost shall be determined 
to include a ratable portion of administrative expenses and overhead 
incurred by the company in its operations and the appropriate amorti- 
zation of previously deferred accounting costs. 

(k) No telephone company subject to this section may change its 
basic local exchange service rates within ninety (90) days after entry of 
a final order adjusting the rate pursuant to subsections (g) and (i) of this 
section. 

(1) Notwithstanding the provisions of this section, if at any time 
following the notice provided under this section another telecommuni- 
cations provider is providing basic local exchange service or switched- 
access service within a local exchange area of the company subject to 
this section, the company that is subject to this section may determine 
its rates for basic local exchange service and switched-access service 
within any exchange in which another telecommunications provider is 
providing these services in the same manner that it determines its 
rates for other services pursuant to subsection (a) of this section. 

(m) A telephone company electing to be regulated in accordance with 
this section may package any of its services with any other service it or 
its affiliates offer, with or without a discount, provided that basic local 
exchange services and switched-access services may be purchased 
separately at the rates that are established in accordance with this 
section. 



23-17-414 PUBLIC UTILITIES AND REGULATED INDUSTRIES 148 

History. Acts 1997, No. 77, § 12; 2003, rent changes to a high-cost fund using 

No. 1764, § 2; 2007, No. 385, §§ 7-9. financial data that is two (2) or more years 

A.C.R.C. Notes. Acts 2007, No. 385, old; 

§ 1, provided: «( 4 ) Due to the complex nature and 

^Legislative findings ever-changing administration of telecom- 

The General Assembly finds that: munications at the federal level, potential 

(1) The development of an admimstra- ch in how accesg ch are cq1 _ 

tively streamlined universal service fund i . *? , -, j. , ,° r ,. ., , 

u i ui.4. -j. • • j. a lected could disrupt support for eligible 

based upon high cost support is important , , • . • ' • • 

nublic Dolicv telecommunications companies serving 

"(2) It is administratively efficient to ru f / ^ a i,®? S i 1 , . . 
use financial data submitted by eligible (5) Eligible telecommunications corn- 
telecommunications companies to federal P^ members of the AICCLP are more 
agencies, made under penalty of law, and adversely affected by sudden changes in 
when appropriate, cost proxies, for the regulation, access charges, and statutory 
high-cost support mechanism, to be called changes; and" 

the "Arkansas High Cost Fund", thereby Amendments. The 2007 amendment 

eliminating the need for extensive finan- substituted "eligible telecommunications" 

cial review and the high administrative for "non tier one rural telephone" in the 

costs created by such reviews; section heading; substituted "Telephone" 

"(3) A five-year transition from the Ar- for "Excluding tier one companies, rural 

kansas Universal Service Fund to the telephone" in (a)(1); deleted "rural" pre- 

Arkansas High Cost Fund is important ceding "telephone" in (k) and (m); and 

public policy due to the shift from a rev- deleted "three year anniversary of the" 

enue replacement fund based upon cur- preceding "notice" in (1). 

23-17-414. Extended area service. 

(a) The Arkansas Public Service Commission shall promulgate rules 
that enable customers in a local exchange service area to petition the 
commission directly or by a resolution of the customers' quorum court 
or other local governing body to request that an incumbent local 
exchange carrier provide extended area service. 

(b)(1) The rules relating to the provision of extended area service 
shall include: 

(A) The procedure by which customers may petition the commis- 
sion for an election on the provision of extended area service; 

(B) A description of the information required for the commission to 
verify that the rate to be charged for providing extended area service 
will be just and reasonable and to verify that the rate includes an 
incumbent local exchange carrier's revenue that is replaced by 
extended area service revenue; 

(C) Notice requirements to customers regarding the rate, terms, 
and conditions under which extended area service would be provided 
as a result of a scheduled election under subsection (a) of this section; 
and 

(D) The procedure for conducting an election under subsection (a) 
of this section and for determining whether extended area service will 
be provided as a result of the election. 

(2) After the initial election and adoption of extended area service, no 
subsequent change in the rate charged for the provision of extended 
area service shall be effective unless adopted under the commission's 
rules promulgated to implement this section. 



149 TELEPHONE AND TELEGRAPH COMPANIES 23-17-416 

(c) If the affected customers vote in favor of instituting or renewing 
extended area service under this section, the carrier shall implement 
extended area service at a rate that is consistent with subdivision 
(b)(1)(B) of this section. 

History. Acts 2003, No. 1764, § 4. 

23-17-415. Reporting of originating intrastate interexchange 
telephone numbers. 

(a) Where technically feasible, any telecommunications provider 
whose customer originates or forwards an intrastate interexchange 
message to be terminated over the public switched telecommunications 
network in Arkansas shall transmit the jurisdictionally appropriate 
telephone number of the originating party sending the message to the 
terminating telecommunications provider. 

(b)(1) The Arkansas Public Service Commission shall investigate 
complaints alleging violations of this section filed under § 23-3-119 and 
may obtain sufficient information to determine the correct jurisdiction 
of any message associated with alleged violations of this section. 

(2) If the commission determines that the jurisdictionally appropri- 
ate telephone number has not been transmitted as required by this 
section, the telecommunications provider against whom the complaint 
was filed shall demonstrate that it had a legitimate business purpose 
for not transmitting the jurisdictionally appropriate telephone number 
or that it was technically infeasible for the provider to transmit the 
number. 

(c)(1) If the commission determines that a telecommunications pro- 
vider has violated this section, the commission shall determine the 
amount of underpayment to any telecommunications provider as a 
result of the violation and shall order the violating telecommunications 
provider to make payment under the applicable tariff or interconnec- 
tion agreement, including any penalties specified therein. 

(2) If no penalties are specified under either the applicable tariffs or 
interconnection agreements, the commission shall assess a civil sanc- 
tion against the violating telecommunications provider consistent with 
state law. 

History. Acts 2003, No. 1766, § 1. 

23-17-416. Arkansas instrastate carrier common line. 

(a)(1) Except as provided in § 23-17-404(e)(4)(D)(i)(6), beginning 
January 1, 2004, intrastate carrier common line charges billed to 
ILECs and underlying carriers shall be determined at the rate of one 
and sixty-five hundredths cents (1.650) per intrastate access minute. 

(2) The carrier common line charge is not a tax and is not affected by 
state laws governing taxation. 

(b)(1) Each underlying carrier's monthly payment to the AICCLP 
shall include the sum of the underlying carrier's share of the AICCLP's 



23-17-416 PUBLIC UTILITIES AND REGULATED INDUSTRIES 150 

net revenue requirement for the remaining incumbent local exchange 
carriers, the underlying carrier's portion of the Arkansas Calling Plan 
Fund and Extension of Telecommunications Facilities Fund expense, 
and the AICCLP administrative expenses. 

(2) Each underlying carrier's monthly payment to the AICCLP shall 
be based upon the underlying carrier's proportionate share of Arkansas 
intrastate telecommunications services revenues and special intrastate 
ILEC revenues to the total Arkansas intrastate telecommunications 
services revenue and special intrastate ILEC revenues of all underlying 
carriers. 
(3)(A)(i) An exiting ILEC that experiences a fixed carrier common 
line revenue shortfall for its carrier common line net revenue require- 
ments may recover the shortfall through increases in local rates 
based on the total customer access base of the exiting company. 

(ii) AICCLP members shall recover their carrier common line net 
revenue requirement by AICCLP rate adjustment and through the 
AICCLP. 

(iii) If the fixed carrier common line revenue shortfall is distrib- 
uted throughout the total customer access base, then each indepen- 
dent ILEC within the total customer access base shall receive from 
the distribution its share of the shortfall. 

(B) An exiting ILEC that seeks to recover its carrier common line 
revenue shortfall is not required to recover equally from each class of 
customers. 

(C)(i) An exiting ILEC may recover its fixed carrier common line 
revenue shortfall from any intrastate rate other than access charges. 
(ii) Any AICCLP member may recover its AICCLP rate adjustment 
from any intrastate rate other than access charges. 

(D) An exiting ILEC that reduces its carrier common line charge of 
one and sixty-five hundredths cents (1.65$) may recover the shortfall 
through increases in local rates. 

(4) This section shall not limit a carrier's ability to adjust its rates 
under § 23-17-406, § 23-17-407, or § 23-17-408. 

(5) This section shall not limit a carrier's ability to increase its local 
rates under § 23-17-412. 

(6) Any AICCLP rate adjustment charge shall not limit an AICCLP 
member's ability to adjust rates under § 23-17-412. 

(7)(A) No toll reseller shall be required to pay to an ILEC or to the 
AICCLP any portion of an underlying carrier's common line net 
revenue obligation unless the ILEC is the toll reseller's underlying 
carrier. 

(B) Unless agreed to otherwise between the toll reseller and the 
ILEC, if an ILEC is a toll reseller's underlying carrier, then the toll 
reseller shall report the special intrastate ILEC revenue to the 
administrator and shall pay all amounts due the AICCLP for the 
revenue. 

(c)(1) The Arkansas Public Service Commission shall adopt all rules 
relating to the membership, operation, management, and administra- 
tion of the AICCLP as it will be constituted after December 31, 2003. 



151 TELEPHONE AND TELEGRAPH COMPANIES 23-17-416 

(2) The commission may adopt rules under subdivision (c)(1) of this 
section after it appoints the members of the Arkansas Intrastate 
Carrier Common Line Pool Advisory Procedural Board and selects an 
AICCLP administrator. 

(d) The commission may terminate a carrier's certificate of conve- 
nience and necessity if the carrier fails to comply with AICCLP 
procedures or fails to make a payment due under this section. 

(e)(1) The commission shall choose an AICCLP administrator on or 
before June 1, 2003. 

(2) The administrator shall manage the collection and distribution of 
the carrier common line net revenue requirements in accordance with 
the rules and procedures established by the commission and consistent 
with this section. 

(3) The administrator shall enforce and implement all rules and 
directives governing the funding, collection, and eligibility for the 
AICCLP membership. 

(4) The administrator shall determine the total monthly amount due 
to the AICCLP from AICCLP members, exiting ILECs, and underlying 
carriers, based upon the sum of the monthly carrier common line net 
revenue requirement of AICCLP members, funding requirements for 
the Arkansas Calling Plan Fund and the Extension of Telecommunica- 
tions Facilities Fund, and the AICCLP administrative fees. 

(5) The administrator shall provide monthly and annual reports to 
the commission concerning the operation of the AICCLP. 

(6) Any information considered proprietary by the administrator 
shall be treated as confidential unless the commission determines that 
the administrator erred in the determination. 

(7) The AICCLP administrator and the Arkansas Universal Service 
Fund administrator may share confidential information to determine 
the amounts due or the accuracy of information submitted by ILECs 
and underlying carriers. 

(8)(A) Any ILEC that was designated as a non-tier one ILEC under 
Acts 1997, No. 77, as of December 31, 1997, and had fewer than fifty 
thousand (50,000) access lines as of December 31, 1997, shall be 
eligible to be a member of the AICCLP beginning January 1, 2004. 

(B)(i) Based on its total customer access base, the maximum that 
a non-tier one company under subdivision (e)(8)(A) of this section 
may draw shall be one million three hundred thousand dollars 
($1,300,000) annually. 

(ii) If a non-tier one company under subdivision (e)(8)(A) of this 
section is entitled to receive more than one million three hundred 
thousand dollars ($1,300,000) annually, then the administrator shall 
assess a prorated charge to each ILEC associated with the total 
customer access base that is based upon the ILECs proportionate 
share of the total net revenue requirement of all ILECs within the 
total customer base. 
(f)(1) Beginning January 1, 2004, no ILEC that had a total customer 

access base of more than fifty thousand (50,000) access lines as of 

December 31, 1997, shall be a member of AICCLP. 



23-17-416 PUBLIC UTILITIES AND REGULATED INDUSTRIES 152 

(2) An ILEC that had a total customer access base of fifty thousand 
(50,000) or fewer access lines as of December 31, 1997, may terminate 
its membership in the AICCLP after sixty (60) days' notice to the 
commission and the administrator and may not thereafter again 
become a member of the AICCLP. 

(g)(1) If an ILEC terminates its membership in the AICCLP after 
January 1, 2004, its total customer access base must exit the pool as a 
single unit. 

(2) If an ILEC terminates its membership in the AICCLP after 
January 1, 2004, its fixed carrier common line revenue shortfall shall be 
calculated using relevant data from the data development period 
identified in subdivision (h)(4)(B)(ii) of this section. 

(h)(1) The administrator shall determine the amounts to be paid to 
AICCLP members on a monthly basis and shall determine any fixed or 
varying amounts due the pool from AICCLP members, exiting ILECs, 
and underlying carriers. 

(2) The administrator shall provide notice to AICCLP members, 
other ILECs, and underlying carriers concerning calculations related to 
each entity and shall bill all carriers for any amounts due the pool. 

(3) The administrator shall use the appropriate data development 
period to determine the calculations for AICCLP members' carrier 
common line net revenue requirement. 

(4)(A) For each ILEC exiting the pool on December 31, 2003, the 
administrator shall use the appropriate data to determine the pay- 
ment that the exiting ILECs shall pay the pool to fund their portion 
of the Arkansas Calling Plan Fund and Extension of Telecommuni- 
cations Facilities Fund. 

(B)(i) Except for AICCLP members exiting the pool after January 
1, 2004, the data development period for all ILECs shall be the 
ILECs' billing months of June, July, and August 2003. 

(ii) If an AICCLP member exits the AICCLP after January 1, 2004, 
its data development period to determine the ILECs fixed carrier 
common line revenue shortfall shall be the three-month period 
immediately preceding its exit. 

(i) No later than the twenty-second day or the next business day 
thereafter of July 2003, if the twenty-second day falls on a weekend or 
holiday, and no later than the twenty-second day or the next business 
day of each month thereafter, if the twenty-second day falls on a 
weekend or holiday, each underlying carrier and AICCLP member shall 
report to the administrator its previous month's data necessary for 
AICCLP calculations. 

(j)(l) On December 31, 2003, and the last business day of each month 
thereafter, the administrator shall cause notice to be sent to each 
underlying carrier, AICCLP member, and exiting ILEC the amount due, 
based on the previous month's data as submitted to the administrator. 
(2) Each underlying carrier, AICCLP member, and exiting ILEC 
shall remit payment due under subdivision (j)(D of this section to the 
administrator by no later than the last business day of the following 
month. 



153 TELEPHONE AND TELEGRAPH COMPANIES 23-17-417 

(3) The administrator shall make all reasonable efforts to ensure 
that AICCLP members receive payment of their monthly net carrier 
common line revenue requirement by February 10, 2004, and by the 
tenth day of each month thereafter. 

History. Acts 2003, No. 1788, § 9. 

23-17-417. Arkansas Intrastate Carrier Common Line Pool Ad- 
visory Procedural Board. 

(a) The Arkansas Intrastate Carrier Common Line Pool Advisory 
Procedural Board is not a government entity under Arkansas law and 
shall not be considered a government entity for any purpose. 

(b) The Arkansas Public Service Commission shall adopt all rules 
relating to the operation of the board that are reasonably necessary to 
implement this section. 

(c) The board shall serve in an advisory capacity and may: 

(1) Propose tariffs and rules to the commission; 

(2) Propose amendments to its procedures for the operation, admin- 
istration, and audit of the AICCLP; 

(3) Advise the commission on other matters reasonably related to the 
operation of the AICCLP and the board; 

(4) Meet by teleconference or by other technological means; and 

(5) Provide recommendations and reports to the commission. 

(d) The board shall be composed of two (2) representatives of under- 
lying carriers and five (5) representatives of ILECs who are members of 
the AICCLP as follows: 

(1) The two (2) underlying carriers' representatives shall be the first 
two (2) willing representatives of the largest underlying carriers, as 
determined by the AICCLP administrator, based upon the carriers' 
portion of the Arkansas intrastate telecommunications service rev- 
enues and special intrastate ILEC revenues; 

(2)(A) The commission shall determine the appropriate underlying 

carrier and ILEC member representatives on or before June 1 of each 

year. 

(B) The commission shall approve any ILEC representative if the 
proposed representative's name is submitted by a two-thirds (%) 
majority of all ILEC members of the AICCLP for any open ILEC 
position on the board; and 

(3)(A) The five (5) ILEC representatives of AICCLP members shall be 
willing representatives of ILECs who are members of the AICCLP. 

(B)(i) The five (5) ILEC representatives will serve staggered five- 
year terms with the terms to be determined by lot at the first meeting 
of the board. 

(ii) A representative may serve unlimited terms. 

(C) No ILEC or underlying carrier may be represented by more 
than one (1) board member. 

(e) The board shall begin operations as of the date the commission 
appoints the first administrator. 



23-17-417 PUBLIC UTILITIES AND REGULATED INDUSTRIES 
History. Acts 2003, No. 1788, § 9. 

CHAPTER 18 
LIGHT, HEAT, AND POWER UTILITIES 



154 



SUBCHAPTER. 

1. General Provisions. 

2. Electric Cooperatives Generally. 

3. Electric Cooperative Corporation Act. 

5. Utility Facility Environmental and Economic Protection Act. 

6. Arkansas Renewable Energy Development Act of 2001. 

7. Arkansas Clean Energy Development Act. 

8. Broadband Over Power Lines Enabling Act. 

9. Arkansas Electric Utility Storm Recovery Securitization Act. 



A.C.R.C. Notes. References to "this 
chapter" in subchapters 1 through 5 may 



not apply to subchapters 6 through 9 
which were enacted subsequently. 



Subchapter 1 — General Provisions 



SECTION. 

23-18-101. Areas of service. 

23-18-103. Purchase of electricity from 
affiliated company. 

23-18-104. Construction of power-gener- 
ating facilities outside the 
state. 

23-18-106. Regulation of resource plan- 
ning, asset acquisition, 



SECTION. 

and alternative retail ser- 
vices. 
23-18-107. Ratemaking policies for cost of 
acquisition or construction 
of incremental resources. 



Effective Dates. Acts 2003, No. 204, 
§ 19: Feb. 21, 2003. Emergency clause 
provided: "It is found and determined by 
the Eighty-fourth General Assembly that 
certain provisions of the Electric Con- 
sumer Choice Act of 1999, as amended by 
Act 324 of 2001, for the implementation of 
retail electric competition may take effect 
prior to ninety-one (91) days after the 
adjournment of this session; that this act 
is intended to prevent such implementa- 
tion; and that unless this emergency 
clause is adopted, this act may not go into 
effect until further steps have been taken 
toward retail electric competition, which 
the General Assembly has found not to be 
in the public interest. The General Assem- 
bly further finds that uncertainty sur- 
rounding the implementation of the Elec- 
tric Consumer Choice Act during the 



ninety (90) days following the adjourn- 
ment of this session and uncertainty re- 
garding the recovery of reasonable gen- 
eration costs, could discourage electric 
utilities from acquiring additional genera- 
tion resources; that retail electric custom- 
ers will require such resources; and that 
this act, in Section 11 and elsewhere, 
provides procedures to facilitate the ac- 
quisition of these resources. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 



155 



LIGHT, HEAT, AND POWER UTILITIES 



23-18-101 



the Governor and the veto is overridden, 
the date the last house overrides the veto." 
Acts 2007, No. 648, § 2: Mar. 28, 2007. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that the rates 
paid by customers of public utilities have 
been affected and will continue to be af- 
fected in a manner that is burdensome to 
the families of Arkansas and harmful to 
economic development because of the ac- 
tions of public utilities and that the Ar- 
kansas Public Service Commission needs 
to be immediately authorized to require 



public utilities to withdraw from system 
wide planning in order to protect Arkan- 
sas customers from higher public utility 
costs. Therefore, an emergency is declared 
to exist and this act being immediately 
necessary for the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 



23-18-101. Areas of service. 

(a) Notwithstanding any provisions of law or the terms of any 
certificate of convenience and necessity, franchise, permit, license, or 
other authority granted to a public utility or electric cooperative 
corporation by the state or a municipality, no public utility or electric 
cooperative corporation shall furnish or offer to furnish electric service 
at retail and not for resale in any area allocated by the Arkansas Public 
Service Commission to another electric cooperative corporation or 
public utility. 

(b) No later than ninety (90) days after February 21, 2003, the 
commission shall commence a rulemaking proceeding to identify and to 
repeal or amend all rules and regulations adopted by the commission to 
facilitate, or in anticipation of, retail electric competition that are 
inconsistent with, have been rendered unnecessary by, or have been 
superseded by this act. 



History. Acts 1935, No. 324, § 41; wise applicable law." 



Pope's Dig., § 2104; Acts 1957, No. 103, 
§ 3; 1967, No. 234, § 5;A.S.A. 1947, § 73- 
240; 2003, No. 204, § 10. 

Publisher's Notes. Acts 2003, No. 204, 
§ 16, provided: "Nothing in this act shall 
alter or diminish the Arkansas Public Ser- 
vice Commission's authority under other- 



Meaning of "this act". Acts 2003, No. 
204, codified as §§ 4-9-102, 4-9-109, 4-9- 
301, 23-2-304, 23-3-102, 23-3-201, 23-4- 
209, 23-18-subch. 1 note, 23-18-101, 23- 
18-103, 23-18-104, 23-18-106, 23-18-107, 
23-18-511, 23-18-519. 



CASE NOTES 



Municipal Utilities. 

The statute did not apply to prevent a 
municipal utility from taking facilities, 
customers, and property in an area an- 
nexed by a city as a municipality or a 



municipal improvement district is not a 
"public utility" within the meaning of the 
statute. Craighead Elec. Coop. Corp. v. 
City Water & Light Plant, 278 F.3d 859 
(8th Cir. 2002). 



23-18-103 PUBLIC UTILITIES AND REGULATED INDUSTRIES 156 

23-18-103. Purchase of electricity from affiliated company. 

(a) As used in this section: 

(1) "Affiliated company" means any business entity which is owned 
wholly or partly by an electric utility or which wholly or partly owns an 
electric utility, or any business entity which is owned by another 
business entity which wholly or partly owns an electric utility; and 

(2) "Electric utility" means an electric utility subject to the jurisdic- 
tion of the Arkansas Public Service Commission. 

(b) Without the prior approval of the commission, no electric utility 
shall enter into any agreement for the purchase of electricity from an 
affiliated company. 

(c) Any agreement entered into in violation of this section shall be 
void. 

(d) The commission shall promulgate such regulations as are neces- 
sary to implement this section. 

(e) This section shall apply to agreements entered into on or after 
June 28, 1985. 

History. Acts 1985, No. 173, §§ 1-5; Acts 2003, No. 204, § 16, provided: 
A.S.A. 1947, §§ 73-278 — 73-278.4; Acts "Nothing in this act shall alter or diminish 
1999, No. 1556, § 7; 2001, No. 324, §§ 3, the Arkansas Public Service Commis- 
4; 2003, No. 204, § 4. sion's authority under otherwise appli- 

Publisher's Notes. Acts 2001, No. 324, cable law." 
§ 4, which repealed this section effective 
October 1, 2003, was repealed by Acts 
2003, No. 204, § 4. 

23-18-104. Construction of power-generating facilities outside 
the state. 

(a) No public utility subject to the jurisdiction of the Arkansas Public 
Service Commission shall commence construction of any power-gener- 
ating facility to be located outside the boundaries of this state without 
the express written approval of the commission. 

(b) Any public utility proposing such construction shall render ad- 
equate written notice to the commission of its intent in order that the 
commission may conduct any germane inspection, investigation, public 
hearing, or take any other action deemed appropriate by the commis- 
sion. 

(c) Failure on the part of any public utility to obtain prior approval of 
the commission, as established in this section, shall constitute grounds 
for disallowance by the commission of all costs and expenses associated 
with the construction and subsequent operation of the facility when 
computing the utility's cost of service for purposes of any rate-making 
proceedings. 

(d) Any electric utility which does not own in whole or in part 
another electric utility and which is not owned in whole or in part by a 
holding company and which derives less than twenty-five percent (25%) 
of its total revenues from Arkansas customers is exempt from the 
provisions of this section. 



157 LIGHT, HEAT, AND POWER UTILITIES 23-18-106 

History. Acts 1985, No. 328, §§ 1-4; Acts 2003, No. 204, § 16, provided: 
1985, No. 918, §§ 1-4; A.S.A. 1947, §§ 73- "Nothing in this act shall alter or diminish 
279 — 73-279.3; Acts 1999, No. 1556, § 8; the Arkansas Public Service Commis- 
2001, No. 324, §§ 5, 6; 2003, No. 204, § 5. s i on 's authority under otherwise appli- 

Publisher's Notes. Acts 2001, No. 324, cable law." 
§ 6, which repealed this section effective 
October 1, 2003, was repealed by Acts 
2003, No. 204, § 5. 

23-18-106. Regulation of resource planning, asset acquisition, 
and alternative retail services. 

(a) The Arkansas Public Service Commission shall have the author- 
ity to adopt rules and regulations under which electric utilities shall 
seek commission review and approval of the processes, actions, and 
plans by which the utilities: 

(1) Engage in comprehensive resource planning; 

(2) Acquire electric energy, capacity, and generation assets; or 

(3) Utilize alternative methods to meet their obligations to serve 
Arkansas retail electric customers. 

(b) With regard to electric cooperatives formed under the Electric 
Cooperative Corporation Act, § 23-18-301 et seq., to the extent that an 
electric distribution cooperative purchases electricity from an electric 
generation and transmission cooperative pursuant to a wholesale 
power contract, the authority granted to the commission by subdivi- 
sions (a)(1) and (2) of this section shall not extend to the electric 
distribution cooperative to the extent of such purchases but shall only 
extend to the electric generation and transmission cooperative. 

(c) Subsection (a) of this section does not apply to any transaction 
involving the acquisition of generation assets, which is closed and 
finalized prior to the adoption of the rules and regulations authorized in 
subsection (a) of this section, or within one (1) year after February 21, 
2003, whichever comes later, and which is the subject of an order or 
ruling of any federal or state regulatory agency issued on or before 
January 1, 2003. 

(d)(1)(A) Reasonable and prudent costs incurred in compliance with 
subsection (a) of this section and in compliance with the provisions of 
§ 23-3-201 et seq. and the Utility Facility Environmental and Eco- 
nomic Protection Act, § 23-18-501 et seq. shall be eligible for recovery 
in the rates of any electric utility making such an acquisition, subject 
to final approval by the commission. 

(B) When the utility establishes that the costs were incurred in 
compliance with subsection (a) of this section, a rebuttable presump- 
tion is established that the costs were reasonable and prudent and 
incurred in the public interest. 

(2) Nothing in this subsection shall be deemed to supersede the 
provisions of § 23-4-103. 

(e) The commission may require an electric public utility that is 
owned by a public utility holding company, as defined by section 1262 of 
the Energy Policy Act of 2005, Pub. L. No. 109-58, and engages in 



23-18-107 PUBLIC UTILITIES AND REGULATED INDUSTRIES 158 

centralized system-wide resource planning to withdraw from central- 
ized system-wide resource planning if: 

(1) The commission determines that centralized system-wide re- 
source planning is not in the public interest; and 

(2) The electric public utility's withdrawal from centralized system- 
wide resource planning is not otherwise prohibited by law. 

History. Acts 2003, No. 204, § 11; vice Commission's authority under other- 

2007, No. 648, § 1. wise applicable law." 

Publisher's Notes. Acts 2003, No. 204, Amendments. The 2007 amendment 

§ 16, provided: "Nothing in this act shall added (e). 
alter or diminish the Arkansas Public Ser- 

23-18-107. Ratemaking policies for cost of acquisition or con- 
struction of incremental resources. 

(a) The Arkansas Public Service Commission may adopt ratemaking 
policies appropriate to allow utilities to recover from their customers 
the reasonable and prudent costs and a reasonable return associated 
with the acquisition or construction by electric utilities of incremental 
resources. 

(b) Nothing in this section shall be deemed to supersede the provi- 
sions of § 23-4-103. 

History. Acts 2003, No. 204, § 11. vice Commission's authority under other- 
Publisher's Notes. Acts 2003, No. 204, wise applicable law." 
§ 16, provided: "Nothing in this act shall Cross References. Rates, rules, and 
alter or diminish the Arkansas Public Ser- regulations to be reasonable, § 23-4-103. 

Subchapter 2 — Electric Cooperatives Generally 

SECTION. SECTION. 

23-18-201. Jurisdiction of Arkansas Pub- 23-18-202. Jurisdiction of Arkansas Pub- 
lic Service Commission lie Service Commission — 
generally. Exemptions. 

23-18-201. Jurisdiction of Arkansas Public Service Commission 
generally. 

Electric cooperative corporations generating, manufacturing, pur- 
chasing, acquiring, transmitting, distributing, selling, furnishing, and 
disposing of electric power and energy in this state pursuant to the 
Electric Cooperative Corporation Act, § 23-18-301 et seq., shall be 
subject to the general jurisdiction of the Arkansas Public Service 
Commission in the same manner and to the same extent as provided by 
law for the regulation, supervision, or control of public utilities except 
as provided in this subchapter. 

History. Acts 1967, No. 234, § 1; A.S.A. Publisher's Notes. This section is be- 

1947, § 73-202.1. ing set out to reflect a name change. 



159 LIGHT, HEAT, AND POWER UTILITIES 23-18-202 

23-18-202. Jurisdiction of Arkansas Public Service Commission 
— Exemptions. 

(a) The jurisdiction of the Arkansas Public Service Commission shall 
not extend to loans made or guaranteed by the Rural Electrification 
Administration of the United States Department of Agriculture, the 
Federal Financing Bank, or such other agency or instrumentality as 
may be established by the United States Government for those pur- 
poses, nor shall it extend to loans made or guaranteed by the National 
Rural Utilities Cooperative Finance Corporation. 

(b) No approval shall be required from the commission for borrow- 
ings, loan contracts, notes, mortgages, or guarantees to which the Rural 
Electrification Administration, the Federal Financing Bank, or such 
other agency or instrumentality described above, or the National Rural 
Utilities Cooperative Finance Corporation or CoBank ACB is a party, 
nor shall approval be required for borrowings, loan contracts, notes, 
mortgages, or guarantees from other public or private sources which 
are secured by a mortgage held in common with or guaranteed by the 
Rural Electrification Administration, the Federal Financing Bank, or 
such other agency or instrumentality described above, or the National 
Rural Utilities Cooperative Finance Corporation or CoBank ACB. 

History. Acts 1967, No. 234, § 2; 1981, Amendments. The 2009 amendment 
No. 353, § 1; A.S.A. 1947, § 73-202.2; inserted "or CoBank ACB" in two places in 
Acts 2009, No. 789, § 1. (b). 

Subchapter 3 — Electric Cooperative Corporation Act 

SECTION. 

23-18-327. Nonprofit operation — Use of 
revenues. 



Effective Dates. Acts 2003, No. 334, members; and that this act is immediately 

§ 2: Mar. 6, 2003. Emergency clause pro- necessary to relieve the electric coopera- 

vided: "It is found and determined by the tives and their members of this financial 

General Assembly of the State of Arkan- burden. Therefore, an emergency is de- 

sas that Arkansas law does not specifi- clared to exist and this act being immedi- 

cally exclude unclaimed capital credits of ately necessary for the preservation of the 

electric cooperatives from the laws gov- public peace, health, and safety shall be- 

erning unclaimed property; that the Gen- come effective on: (1) The date of its ap- 

eral Assembly has excluded the unclaimed proval by the Governor; (2) If the bill is 

capital credits of other cooperative organi- neither approved nor vetoed by the Gov- 

zations from the laws governing un- ernor, the expiration of the period of time 

claimed property; that the obligation to during which the Governor may veto the 

report and deliver unclaimed capital cred- bill; or (3) If the bill is vetoed by the 

its places an undue economic burden on Governor and the veto is overridden, the 

electric cooperative corporations and their date the last house overrides the veto." 



23-18-302 PUBLIC UTILITIES AND REGULATED INDUSTRIES 160 

23-18-302. Definitions. 

CASE NOTES 

Construction with Other Laws. from its assigned area, as § 14-207-103 
A municipal utility could take facilities, specifically allowed a municipal utility to 
customers, and property in an area an- condemn the facilities, distribution prop- 
nexed by a city, notwithstanding that erties, and customers of an electric coop- 
former subdivision (8), now repealed, erative. Craighead Elec. Coop. Corp. v. 
stood for the general proposition that an City Water & Light Plant, 278 F.3d 859 
electric cooperative could not be ousted (8th Cir. 2002). 

23-18-327. Nonprofit operation — Use of revenues. 

(a) Each corporation shall be operated without profit to its members, 
but the rates, fees, rents, or other charges for electric energy and any 
other facilities, supplies, equipment, or services furnished by the 
corporation shall be sufficient at all times: 

(1) To pay all operating and maintenance expenses necessary or 
desirable for the prudent conduct of its business and the principal of 
and interest on the obligations issued or assumed by the corporation in 
the performance of the purpose for which it was organized; and 

(2) For the creation of reserves. 

(b) The revenues of the corporation shall be devoted first to the 
payment of operating and maintenance expenses and the principal and 
interest on outstanding obligations. Thereafter, the revenues shall be 
devoted to such reserves for improvement, new construction, deprecia- 
tion, and contingencies as the board may from time to time prescribe. 

(c) Revenues not required for the purposes set forth in subsection (b) 
of this section shall be returned from time to time to the members on a 
pro rata basis according to the amount of business done with each 
during the period either in cash, in abatement of current charges for 
electric energy, or otherwise as the board determines, but return may be 
made by way of general rate reduction to members if the board so elects. 

(d) If a corporation organized under this subchapter declares a 
capital credit and any capital credit remains unclaimed after notice 
thereof was transmitted to the last known address of the beneficiary of 
the unclaimed capital credit, the unclaimed capital credit shall not be 
deemed unclaimed or abandoned property under the Unclaimed Prop- 
erty Act, § 18-28-201 et seq. 

History. Acts 1937, No. 342, § 25; 
Pope's Dig., § 2339; A.S.A. 1947, § 77- 
1125; Acts 2003, No. 334, § 1. 

CASE NOTES 

Claim Dismissed for Failure to Ex- customers' claims were properly dis- 

haust Administrative Remedies. missed due to the customers' failure to 

When an electric cooperative's custom- seek relief from the Arkansas Public Ser- 

ers alleged the utility failed to refund vice Commission (APSC) because (1) it 

patronage capital to the customers, the was alleged that the cooperative violated 



161 



LIGHT, HEAT, AND POWER UTILITIES 



23-18-327 



a duty to pay capital credits "on a reason- 
able and systematic basis," (2) the main 
relief sought was a refund of those credits, 
(3) the APSC had primary jurisdiction 
over claims that the cooperative violated 
this section and was authorized by § 23- 
3- 119(d) to order appropriate prospective 
relief, and (4) the customers' claims were 
not private damage claims based on tort, 
contract, or property law. Capps v. Carroll 
Elec. Coop. Corp., 2011 Ark. 48, — S.W.3d 
— (2011). 
When an electric cooperative's custom- 



ers who were Missouri residents alleged 
the utility failed to refund patronage capi- 
tal to the customers, the customers' claims 
were properly dismissed due to the cus- 
tomers' failure to seek relief from the 
Arkansas Public Service Commission 
(APSC) because (1) the customers did not 
allege a claim under Missouri law, and (2) 
the claims were based on an alleged fail- 
ure of the cooperative to comply with 
Arkansas law, specifically this section. 
Capps v. Carroll Elec. Coop. Corp., 2011 
Ark. 48, — S.W.3d — (2011). 



Subchapter 5 — Utility Facility Environmental and Economic 

Protection Act 



SECTION. 

23-18-502. Legislative findings — Intent 
— Purpose. 

23-18-503. Definitions. 

23-18-504. Exemptions — Waiver. 

23-18-506. Arkansas Department of En- 
vironmental Quality's and 
Arkansas Pollution Con- 
trol and Ecology Commis- 
sion's jurisdiction unaf- 
fected by subchapter. 

23-18-507. Authority of Arkansas Public 
Service Commission. 

23-18-508. Rules and regulations. 

23-18-510. Certificate of environmental 
compatibility and public 
need — Requirement — 
Exceptions. 

23-18-511. Application for certificate — 
Contents generally. 



SECTION. 

23-18-513. Application for certificate — 
Service or notice of appli- 
cation. 

23-18-516. Hearing on application or 
amendment. 

23-18-517. Parties to certification pro- 
ceedings. 

23-18-519. Decision of commission — 
Modifications of applica- 
tion. 

23-18-521. Issuance of certificate — Ef- 
fect. 

23-18-524. Rehearing — Judicial review. 

23-18-525. Jurisdiction of courts. 

23-18-530. Treatment of major utility fa- 
cility generating plant. 

23-18-531, 23-18-532. [Repealed.] 



Effective Dates. Acts 2003, No. 204, 
§ 19: Feb. 21, 2003. Emergency clause 
provided: "It is found and determined by 
the Eighty-fourth General Assembly that 
certain provisions of the Electric Con- 
sumer Choice Act of 1999, as amended by 
Act 324 of 2001, for the implementation of 
retail electric competition may take effect 
prior to ninety-one (91) days after the 
adjournment of this session; that this act 
is intended to prevent such implementa- 
tion; and that unless this emergency 
clause is adopted, this act may not go into 
effect until further steps have been taken 
toward retail electric competition, which 
the General Assembly has found not to be 
in the public interest. The General Assem- 



bly further finds that uncertainty sur- 
rounding the implementation of the Elec- 
tric Consumer Choice Act during the 
ninety (90) days following the adjourn- 
ment of this session and uncertainty re- 
garding the recovery of reasonable gen- 
eration costs, could discourage electric 
utilities from acquiring additional genera- 
tion resources; that retail electric custom- 
ers will require such resources; and that 
this act, in Section 11 and elsewhere, 
provides procedures to facilitate the ac- 
quisition of these resources. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 



23-18-502 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



162 



date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 
Acts 2007, No. 658, § 6: Mar. 28, 2007. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that in the imme- 
diate future the United States Secretary 
of Energy may designate portions of Ar- 
kansas as a national interest electric 
transmission corridor; that such a desig- 
nation could result in the federal preemp- 
tion of state law; and that this act is 
necessary to provide a means for the con- 
struction of transmission facilities that 
are less onerous than under federal law. 
Therefore, an emergency is declared to 
exist and this act being immediately nec- 
essary for the preservation of the public 
peace, health, and safety shall become 
effective on: (1) The date of its approval by 
the Governor; (2) If the bill is neither 
approved nor vetoed by the Governor, the 
expiration of the period of time during 
which the Governor may veto the bill; or 



(3) If the bill is vetoed by the Governor 
and the veto is overridden, the date the 
last house overrides the veto." 

Acts 2011, No. 910, § 13: Apr. 1, 2011. 
Emergency clause provided: "It is found 
and determined by the General Assembly 
of the State of Arkansas that recent deci- 
sions by the Arkansas Court of Appeals 
and the Arkansas Supreme Court have 
pointed out the need for the General As- 
sembly to clarify its intentions regarding 
the certification and authorization of the 
location, financing, construction, and op- 
eration of major utility facilities; and that 
this act is immediately necessary to pro- 
vide for the continued economic develop- 
ment of the state and the orderly and 
efficient development of essential energy 
resources. Therefore, an emergency is de- 
clared to exist and this act being immedi- 
ately necessary for the preservation of the 
public peace, health, and safety shall be- 
come effective on: (1) The date of its ap- 
proval by the Governor; (2) If the bill is 
neither approved nor vetoed by the Gov- 
ernor, the expiration of the period of time 
during which the Governor may veto the 
bill; or (3) If the bill is vetoed by the 
Governor and the veto is overridden, the 
date the last house overrides the veto." 



23-18-502. Legislative findings — Intent — Purpose. 

(a)(1) The General Assembly finds and declares that there is at 
present and will continue to be a growing need for electric and gas 
public utility services that will require the construction of major new 
facilities. 

(2) It is recognized that the facilities cannot be built without affect- 
ing in some way the physical environment in which the facilities are 
located and without the expenditure of massive amounts of capital. 

(3) It is also recognized that the future economic development of the 
state requires the ready availability of public utility energy resources to 
serve industrial, commercial, and residential customers. 

(b) The General Assembly further finds that it is essential to the 
public interest to minimize any adverse effect upon the environment 
and upon the quality of life of the people of the state that the new 
facilities might cause and to minimize the economic costs to the people 
of the state of obtaining reliable, clean, safe, and adequate energy 
supplies. 

(c)(1) The General Assembly further finds that laws and practices 
relating to the location, financing, construction, and operation of the 
utility facilities should provide for the protection of environmental 



163 LIGHT, HEAT, AND POWER UTILITIES 23-18-502 

values, encourage the development of alternative renewable and non- 
renewable energy technologies that are energy-efficient, and take into 
account the total cost to society of the facilities, including without 
limitation the cost of providing safe, reliable, and cost-effective energy 
resources. 

(2)(A) Without further clarification, present laws may result in 
undue costly delays in new construction, may encourage the devel- 
opment of energy technologies that are relatively inefficient, and may 
increase costs, which will eventually be borne by the people of the 
state in the form of higher utility rates. 

(B) Interpretations of existing laws could threaten the ability of 
utilities to meet the needs of the people of the state for economical 
and reliable utility service, and thus, the existing laws require 
further clarification. 

(d) Furthermore, the General Assembly finds that there should be 
provided an adequate opportunity for individuals, groups interested in 
energy and resource conservation and the protection of the environ- 
ment, state and regional agencies, local governments, and other public 
bodies to participate in timely fashion in decisions regarding the 
location, financing, construction, and operation of major utility facili- 
ties. 

(e)(1) The General Assembly, therefore, declares that it is the pur- 
pose of this subchapter to provide an exclusive forum with primary and 
final jurisdiction, except as provided in §§ 23-18-505 and 23-18-506, for 
the expeditious resolution of all matters concerning the location, 
financing, construction, and operation of a major utility facility in a 
single proceeding to which access will be open to individuals, groups, 
state and regional agencies, local governments, and other public bodies 
to enable them to participate in these decisions. 

(2) The matters identified in subdivision (e)(1) of this section that 
were formerly under the jurisdiction of multiple state, regional, and 
local agencies are declared to be of statewide interest. 

(f) It is the intent of the General Assembly to provide for the 
expeditious and efficient review of the siting of major utility facilities. 

History. Acts 1973, No. 164, § 2; 1977, tions of at the beginning and "and thus, 

No. 866, § 1; A.S.A. 1947, § 73-276.1; the existing laws require further clarifica- 

Acts 2011, No. 910, § 1. tion" at the end; inserted "utility" near the 

Amendments. The 2011 amendment end of (d); in (e)(1), substituted "an exclu- 
added (a)(3); in (c)(1), substituted "provide sive forum with primary and final juris- 
for the protection of for "be strengthened diction" for "a forum with exclusive and 
to protect" and inserted "including with- final jurisdiction" and substituted "a ma- 
out limitation the cost of providing safe, jor utility facility" for "electric generating 
reliable, and cost-effective energy re- plants and electric and gas transmission 
sources"; inserted "Without further clari- lines and associated facilities"; substi- 
fication" in (c)(2)(A); deleted "and prac- tuted "identified in subdivision (e)(1) of 
tices" following "laws" in (c)(2)(A) and this section that were formerly" for "pres- 
(c)(2)(B); in (c)(2)(B), inserted "Interpreta- ently" in (e)(2); and added (f). 



23-18-503 PUBLIC UTILITIES AND REGULATED INDUSTRIES 164 

CASE NOTES 

Proceedings. §§ 23-18-501 — 530, where it erroneously 
Arkansas Public Service Commission resolved the need for the facility in a 
erred in granting a Certificate of Environ- separate Needs Docket. Hempstead 
mental Compatibility and Public Need to County Hunting Club, Inc. v. Ark. PSC, 
a power company for the construction of a 2010 Ark. 221, — S.W.3d — (2010), re- 
facility under the Utility Facility and Eco- hearing denied, — Ark. — , — S.W.3d — , 
nomic Protection Act, Ark. Code Ann. 2010 Ark. LEXIS 375 (June 24, 2010). 

23-18-503. Definitions. 

As used in this subchapter: 

(1) "Applicant" means the utility or other person making application 
to the Arkansas Public Service Commission for a certificate of environ- 
mental compatibility and public need; 

(2)(A) "Commence to construct" means any clearing of land, excava- 
tion, or other action that would adversely affect the natural environ- 
ment of the site or route of a major utility facility. 

(B) "Commence to construct" does not include: 

(i) Changes needed for temporary use of sites or routes for non- 
utility purposes; or 

(ii) Uses in securing survey or geological data, including necessary 
borings to ascertain foundation conditions; 

(3) "Commission" means the Arkansas Public Service Commission; 

(4) "Energy-efficient" means economical in the use of energy; 

(5) "Energy resource declaration-of-need proceeding" means a util- 
ity-specific proceeding conducted by the Arkansas Public Service Com- 
mission under §§ 23-18-106 and 23-18-107 and the rules and regula- 
tions adopted thereunder to determine the need for additional energy 
supply and transmission resources by a public utility; 

(6) "Major utility facility" means: 

(A) An electric generating plant and associated transportation and 
storage facilities for fuel and other facilities designed for or capable of 
operation at a capacity of fifty megawatts (50 MW) or more; 

(B) For the sole purpose of requiring an environmental impact 
statement under this subchapter, an electric transmission line and 
associated facilities including substations of: 

(i) A design voltage of one hundred kilovolts (100 kV) or more and 
extending a distance of more than ten (10) miles; or 

(ii) A design voltage of one hundred seventy kilovolts (170 kV) or 
more and extending a distance of more than one (1) mile; or 

(C) For the sole purpose of requiring an environmental impact 
statement under this subchapter, a gas transmission line and asso- 
ciated facilities designed for or capable of transporting gas at pres- 
sures in excess of one hundred twenty-five pounds per square inch 
(125 psi) and extending a distance of more than one (1) mile except 
gas pipelines devoted solely to the gathering of gas from gas wells 
constructed within the limits of any gas field as defined by the Oil and 
Gas Commission; 



165 LIGHT, HEAT, AND POWER UTILITIES 23-18-503 

(7) "Merchant generator" means a person or entity, including an 
affiliate of a public utility, engaged directly or indirectly through one (1) 
or more affiliates, that is in the business of owning or operating all or 
part of a facility for generating electric energy and selling electric 
energy at wholesale; 

(8) "Merchant transmission provider" means a person or entity that 
owns or operates facilities used for the transmission of electric energy 
and whose rates or charges are not subject to the jurisdiction of the 
commission; 

(9) "Municipality" means any county or municipality within the 
state; 

(10) "National interest electric transmission corridor" means an area 
of the state found by the United States Secretary of Energy to be 
experiencing electric energy transmission capacity constraints or con- 
gestion and therefore designated as a national interest electric trans- 
mission corridor by the United States Secretary of Energy under the 
authority granted by section 1221(a) of the Energy Policy Act of 2005, 
Pub. L. No. 109-58; 

(11) "Nonrenewable energy technology" or "nonrenewable energy 
sources" means any technology or source of energy that depends upon 
the use of depletable fossil fuels such as oil, gas, and coal; 

(12) "Person" includes an individual, group, firm, partnership, cor- 
poration, cooperative association, municipality, government subdivi- 
sion, government agency, local government, or other organization; 

(13) "Public utility" or "utility" means a person engaged in the 
production, storage, distribution, sale, delivery, or furnishing of elec- 
tricity or gas, or both, to or for the public, as defined in § 23-1- 
101(9)(A)(i) and (B), but does not include an exempt wholesale genera- 
tor as defined in § 23-1-101(5); 

(14) "Regional transmission organization" means an entity approved 
by the Federal Energy Regulatory Commission to plan and operate 
facilities for the transmission of electric energy within a designated 
region; and 

(15) "Renewable energy technology" means any technology or source 
of energy that is not depletable, including without limitation solar, 
wind, biomass conversion, hydroelectric, or geothermal. 

History. Acts 1973, No. 164, § 3; 1977, maining subdivisions accordingly; substi- 

No. 866, § 1; 1979, No. 245, § 1; A.S.A. tuted "(125 psi)" for "(125 lbs. psi)" in 

1947, § 73-276.2; Acts 1999, No. 1322, (6)(C); and, in (15), substituted "including 

§ 2; 2007, No. 658, § 1; 2011, No. 910, without limitation" for "such as" and in- 

§ 2. serted "hydroelectric." 

Amendments. The 2007 amendment U.S. Code. Section 1221(a) of the En- 
inserted present (6), (7), (9), and (13), and ergy Policy Act of 2005, Pub.L. No. 109-58, 
redesignated the remaining subdivisions referred to in subdivision (9), is compiled 
accordingly; and made a related change. as 16 TJ S C § 824n 

The 2011 amendment inserted (2)(B) * p ' 
and present (5) and redesignated the re- 



23-18-504 PUBLIC UTILITIES AND REGULATED INDUSTRIES 166 

CASE NOTES 

Cited: Hempstead County Hunting 
Club, Inc. v. Ark. PSC, 2009 Ark. App. 511, 
324 S.W.3d 697 (2009). 

23-18-504. Exemptions — Waiver. 

(a) This subchapter does not apply to a major utility facility: 

(1) For which, before July 24, 1973, an application for the approval of 
the major utility facility was made to any federal, state, regional, or 
local governmental agency that possesses the jurisdiction to consider 
the matters prescribed for finding and determination in § 23- 18-5 19(a) 
and (b); 

(2) For which, before July 24, 1973, the Arkansas Public Service 
Commission issued a certificate of convenience and necessity or other- 
wise approved the construction of the major utility facility; 

(3) Over which an agency of the federal government has exclusive 
jurisdiction; 

(4) A majority of which is owned by one (1) or more exempt wholesale 
generators as defined in § 23-1-101(5); or 

(5) That is a major utility facility for generating electric energy, if the 
majority of the major utility facility is owned by any person, including 
without limitation a public utility that will not recover the cost of the 
major utility facility in rates subject to regulation by the commission. 

(b)(1)(A) A person intending to construct a major utility facility 
excluded or exempted from this subchapter may elect to waive the 
exclusion or exemption by delivering notice of the waiver to the 
commission. 

(B) The filing of an application by a public utility under § 23-18- 
511 is not a notice of waiver or an election to waive an exclusion or 
exemption. 

(C) The responsibility for determining whether a proposed major 
utility facility is exempt from the requirements of this subchapter is 
within the primary and exclusive jurisdiction of the commission. 
(2) Upon the commission's receipt of the notice of an election to waive 

the exclusion or exemption, this subchapter shall thereafter apply to 
each major utility facility identified in the notice. 

(c) A public utility owning a minority interest in an exempt major 
utility facility shall not be entitled to recover its costs of ownership or 
operation in rates subject to the jurisdiction of the Arkansas Public 
Service Commission without first obtaining the right to own and 
operate a portion of the major utility facility under a certificate of public 
convenience and necessity under §§ 23-3-201 — 23-3-206. 

History. Acts 1973, No. 164, § 4; 1977, in (a)(1), inserted "major utility" preced- 

No. 866, § 1; A.S.A. 1947, § 73-276.3; ing "facility" and substituted "that" for 

Acts 1999, No. 1322, § 3; 2011, No. 910, "which agency"; in (a)(2), inserted "major 

§ 3. utility"; substituted "A majority of which 

Amendments. The 2011 amendment is owned" for "That is owned" in (a)(4); 



167 LIGHT, HEAT, AND POWER UTILITIES 23-18-507 

rewrote (a)(5); substituted "a major utility (b)(1)(A); inserted (b)(1)(B) and (b)(1)(C); 
facility" for "any utility facility" in rewrote (b)(2); and added (c). 

23-18-506. Arkansas Department of Environmental Quality's 
and Arkansas Pollution Control and Ecology Com- 
mission's jurisdiction unaffected by subchapter. 

(a) This subchapter does not affect the: 

(1) Jurisdiction of the Arkansas Department of Environmental Qual- 
ity or the Arkansas Pollution Control and Ecology Commission with 
respect to water and air pollution control or other matters within the 
jurisdiction of the department or the Arkansas Pollution Control and 
Ecology Commission; and 

(2) Requirement that a person apply for and obtain a permit from the 
department as provided by the Arkansas Water and Air Pollution 
Control Act, §§ 8-4-101 — 8-4-106, 8-4-201 — 8-4-229, and 8-4-301 — 
8-4-313. 

(b) This subchapter does not confer upon the Arkansas Public 
Service Commission any authority or jurisdiction conferred by law upon 
the department or the Arkansas Pollution Control and Ecology Com- 
mission. 

(c) Notwithstanding the exemption provisions of § 23-18-504, each 
major utility facility constructed in Arkansas is subject to the environ- 
mental rules and regulations of the state and federal regulatory bodies 
having jurisdiction over the air, water, and other environmental im- 
pacts associated with the major utility facility. 

History. Acts 1973, No. 164, § 19; and Ecology Commission's" in the section 

1977, No. 866, § 1; A.S.A. 1947, § 73- heading; subdivided the section as (a) and 

276.18; Acts 1999, No. 1164, § 179; 2011, (b); inserted "or the Arkansas Pollution 

No. 910, § 4. Control and Ecology Commission" twice in 

Amendments. The 2011 amendment ( a )(i) an d in (b); and added (c). 
inserted "and Arkansas Pollution Control 

23-18-507. Authority of Arkansas Public Service Commission. 

(a) Nothing in this subchapter shall be deemed to confer upon the 
Arkansas Public Service Commission power or jurisdiction to regulate 
or supervise the rates, service, or securities of any person not otherwise 
subject to the commission's jurisdiction. 

(b) The commission, in the discharge of its duties under this sub- 
chapter or any other act, is authorized to make joint investigations, 
hold joint hearings in or outside the state, and to issue joint or 
concurrent orders in conjunction or concurrence with any official or 
agency of any other state or of the United States, whether in the holding 
of such investigations or hearings or in the making of such orders the 
commission functions under agreements or compacts between states or 
under the concurrent power of states to regulate interstate commerce, 
or as an agency of the United States, or otherwise. 

(c) In the discharge of its duties under this subchapter, the commis- 
sion is further authorized to negotiate and enter into agreements or 



23-18-508 PUBLIC UTILITIES AND REGULATED INDUSTRIES 168 

compacts with agencies of other states, pursuant to any consent of 
Congress, for cooperative efforts in certification, construction, financ- 
ing, operation, and maintenance of major utility facilities in accord with 
the purposes of this subchapter and for the enforcement of the respec- 
tive state laws regarding them. 

(d) The commission is deemed to be the agency of the State of 
Arkansas that shall be the member of any regional hearing authority or 
commission created by the terms of any compact between Arkansas and 
other states or between Arkansas and the United States otherwise 
concerning the implementation of this subchapter, except as may be 
provided by §§ 23-18-505 and 23-18-506. 

(e) It is the intent of the General Assembly to confer upon the 
commission, under this subchapter, broad rule-making authority ad- 
equate to enable it to comply with any requirements imposed by state 
or federal legislation dealing with the subject matter of this subchapter 
upon state-administered certification programs and to enable it to 
comply with any state or federal requirements for facilitating the 
issuance of tax-exempt bonds should their issuance be authorized. 

(f)(1) Under §§ 23-18-106 and 23-18-107 and the rules and regula- 
tions adopted thereunder, the commission may determine the need for 
additional energy supply and transmission resources by public utilities 
in an energy resource declaration-of-need proceeding. 

(2) A determination of need under subdivision (f)(1) of this section 
shall be deemed the basis for the need for the construction of a major 
utility facility to be sited and constructed under this subchapter. 

History. Acts 1973, No. 164, §§ 14, 18; Amendments. The 2011 amendment 
1977, No. 866, § 1; A.S.A. 1947, §§ 73- added (f). 
276.13, 73-276.17; Acts 2011, No. 910, § 5. 

23-18-508. Rules and regulations. 

The Arkansas Public Service Commission shall have and is granted 
the power and authority to make and amend from time to time after 
reasonable notice and hearing reasonable rules and regulations estab- 
lishing exemptions from some or all of the requirements of this 
subchapter for the construction, reconstruction, or expansion of any 
major utility facility which is unlikely to have major adverse environ- 
mental or economic impact by reason of length, size, location, available 
space, or right-of-way on or adjacent to existing utility facilities and 
similar reasons. 

History. Acts 1973, No. 164, § 4; 1977, Publisher's Notes. This section is be- 
No. 866, § 1; A.S.A. 1947, § 73-276.3. ing set out to reflect a punctuation change. 

23-18-510. Certificate of environmental compatibility and pub- 
lic need — Requirement — Exceptions. 

(a) No person shall commence to construct a major utility facility in 
the state, except those exempted as provided in subsection (c) of this 



169 LIGHT, HEAT, AND POWER UTILITIES 23-18-511 

section and §§ 23-18-504(a) and 23-18-508, without first having ob- 
tained a certificate of environmental compatibility and public need, 
hereafter called a "certificate", issued with respect to the facility by the 
Arkansas Public Service Commission. The replacement or expansion of 
an existing transmission facility with a similar facility in substantially 
the same location or the rebuilding, upgrading, modernizing, or recon- 
struction for the purposes of increasing capacity shall not constitute 
construction of a major utility facility if no increase in width of 
right-of-way is required. 

(b) No entity, including but not limited to, a person, public utility, 
utility, regional transmission organization, municipality, merchant 
transmission provider, merchant generator, or other entity, whether 
regulated or not by the commission, shall commence to construct a 
major electric transmission facility, as defined in § 23-18-503, within a 
national interest electric transmission corridor without first having 
obtained a certificate of environmental compatibility and public need 
issued with respect to such a facility by the commission. 

(c) Nothing in this subchapter shall be construed to require a 
certificate under this subchapter or an amendment thereof for: 

(1) Reconstruction, alteration, or relocation of any major utility 
facility which must be reconstructed, altered, or relocated because of 
the requirements of any federal, state, or county governmental body or 
agency for purposes of highway transportation, public safety, or air and 
water quality; or 

(2) Any major electric transmission facility to be constructed or 
operated by a municipal electric system that is located within the 
territorial limits of such municipal electric utility system. 

(d) Any entity granted a certificate pursuant to subsection (b) of this 
section shall have the right of eminent domain as provided by Arkansas 
law for the limited purpose of constructing the certificated major 
electric transmission facility to the extent that the facility is located 
within a national interest electric transmission corridor. 

History. Acts 1973, No. 164, § 4; 1977, inserted present (b), redesignated former 

No. 866, § 1; A.S.A. 1947, § 73-276.3; (b) as present (c), added (c)(2) and (d), and 

Acts 2007, No. 658, § 2. made related and stylistic changes. 

Amendments. The 2007 amendment 

23-18-511. Application for certificate — Contents generally. 

An applicant for a certificate shall file with the Arkansas Public 
Service Commission a verified application in the form required by the 
commission and containing the following information: 

(1) A general description of the location and type of the major utility 
facility proposed to be built; 

(2) A general description of any reasonable alternate location or 
locations considered for the proposed facility; 

(3) A statement of the need and reasons for construction of the 
facility, including, if applicable, a reference to any prior commission 



23-18-511 PUBLIC UTILITIES AND REGULATED INDUSTRIES 170 

action in an energy resource declaration-of-need proceeding determin- 
ing the need for additional energy supply or transmission resources by 
the public utility; 

(4) A statement of the estimated costs of the major utility facility and 
the proposed method of financing the construction of the major utility 
facility; 
(5)(A) A general description of any reasonable alternate methods of 
financing the construction of the major utility facility and a descrip- 
tion of the comparative merits and detriments of each alternate 
financing method considered. 

(B) If at the time of filing of the application the federal income tax 
laws and the state laws would permit the issuance of tax-exempt 
bonds to finance the construction of the proposed major utility facility 
for the applicant by a state financing agency, the application shall 
also include a discussion of the merits and detriments of financing the 
major utility facility with the bonds; 

(6) An analysis of the projected economic or financial impact on the 
applicant and the local community in which the major utility facility is 
to be located as a result of the construction and the operation of the 
proposed major utility facility; 

(7) An analysis of the estimated effects on energy costs to the 
consumer as a result of the construction and operation of the proposed 
major utility facility; 

(8)(A) An exhibit containing an environmental impact statement 
that fully develops the four (4) factors listed in subdivision (8)(B) of 
this section, treating in reasonable detail such considerations, if 
applicable, as: 

(i) The proposed major utility facility's direct and indirect effect on 
the following in the area in which the major utility facility is to be 
located: 

(a) The ecology of the land, air, and water environment; 

(b) Established park and recreational areas; and 

(c) Any sites of natural, historic, and scenic values and resources of 
the area in which the major utility facility is to be located; and 

(ii) Any other relevant environmental effects. 

(B) The environmental impact statement shall state: 

(i) The environmental impact of the proposed action; 

(ii) Any adverse environmental effects that cannot be avoided; 

(iii) A description of the comparative merits and detriments of 
each alternate location considered for the major utility facility; 

(iv) For generating plants, the energy production process consid- 
ered; 

(v) A statement of the reasons why the proposed location and 
production process were selected for the major utility facility; and 

(vi) Any irreversible and irretrievable commitments of resources 
that would be involved in the proposed action should it be imple- 
mented; 

(9) The interstate benefits expected to be achieved by the proposed 
construction or modification of an electric transmission line and asso- 



171 



LIGHT, HEAT, AND POWER UTILITIES 



23-18-513 



dated facilities, as described in § 23-18-503(6)(B), that is located 
within a national interest electric transmission corridor; and 

(10) Such other information of an environmental or economic nature 
as the applicant may consider relevant or as the commission may by 
regulation or order require. 



History. Acts 1973, No. 164, § 5; 1977, 
No. 866, § 1; A.S.A. 1947, § 73-276.4; 
Acts 1999, No. 1556, § 9; 2001, No. 324, 
§§ 7, 8; 2003, No. 204, §§ 12, 13; 2007, 
No. 658, § 3; 2009, No. 164, § 7; 2011, No. 
910, § 6. 

Publisher's Notes. Acts 2001, No. 324, 
§ 7, repealed the amendment by Acts 
1999, No. 1556 that was to become effec- 
tive January 1, 2002. The 1999 amend- 
ment would have added exceptions in (3), 
(4), (5)(A) and (7), and inserted a new 
subdivision. 

Acts 2003, No. 204, §§ 12 and 13, re- 
pealed the amendment by Acts 2001, No. 
324, § 8, that was to become effective 
October 1, 2003. The 2001 amendment 
would have added exceptions in (3), (4), 
(5)(A) and (7); and inserted a new subdi- 
vision which read: "In the case of a major 
utility facility as defined by § 23-18- 
503(5)(B), the effect of the proposed facil- 
ity on competition for the sale of electric 
generation in the state or region." 



Acts 2003, No. 204, § 16, provided: 
"Nothing in this act shall alter or diminish 
the Arkansas Public Service Commis- 
sion's authority under otherwise appli- 
cable law." 

Amendments. The 2007 amendment 
inserted present (9), redesignated former 
(9) as (10), and made related changes. 

The 2009 amendment, in (9), substi- 
tuted "as described in" for "as defined by," 
and inserted "that is located." 

The 2011 amendment inserted "major 
utility" preceding "facility" throughout the 
section; inserted "including ... by the pub- 
lic utility" in (3); inserted "the following in 
the area in which the major utility facility 
is to be located" in (8)(A)(i); inserted "con- 
sidered for the major utility facility" in 
(8)(B)(iii); and, in (9), substituted "an elec- 
tric transmission line and associated fa- 
cilities" for "a major electric transmission 
facility" and substituted "§ 23-18- 
503(6)(B)" for "§ 23-18-503(5)(B)." 



CASE NOTES 



Proceedings. 

There was a lack of substantial evidence 
supporting the Arkansas Public Service 
Commission's determination that there 
was a basis of the need for an ultra- 
supercritical, pulverized coal-fired plant 
where the environmental impact state- 
ment failed to sufficiently address alter- 
natives in reasonable detail, evidence of 
alternative locations, alternative energy 



production processes, alternative fuels, or 
carbon dioxide emissions was lacking, and 
evidence upon which the Commission 
could have made findings on the nature of 
the probable economic impact of the facil- 
ity was lacking. Hempstead County Hunt- 
ing Club, Inc. v. Ark. PSC, 2010 Ark. 221, 
— S.W.3d — (2010), rehearing denied, — 
Ark. — , — S.W.3d — , 2010 Ark. LEXIS 
375 (June 24, 2010). 



Service or notice of 



23-18-513. Application for certificate 
application. 

(a) Each application for a certificate of environmental compatibility 
and public need shall be accompanied by proof of service of a copy of the 
application on: 

(1) The mayor of each municipality; 

(2) The county judge; 

(3) The chair of the county planning board, if any; 

(4) Any head of a governmental agency charged with the duty of 
protecting the environment or of planning land use, upon which the 



23-18-513 PUBLIC UTILITIES AND REGULATED INDUSTRIES 172 

Arkansas Public Service Commission has by regulation or order di- 
rected that service be made, in the area in which any portion of such 
facility is to be located, both as primarily and as alternatively proposed; 

(5) Each member of the General Assembly in whose district the 
facility or any alternative location listed in the application is to be 
located; 

(6) The office of the Governor; and 

(7) The director or other administrative head of the following state 
agencies or departments: 

(A) Arkansas Department of Environmental Quality; 

(B) Department of Health; 

(C) Arkansas Economic Development Commission; 

(D) Arkansas State Highway and Transportation Department; 

(E) Arkansas State Game and Fish Commission; 

(F) Arkansas Natural Heritage Commission; 

(G) Any state agency which may have the authority to assist in 
financing the applicant's facility; 

(H) Any other state agency or department which manages or has 
jurisdiction over state-owned lands on which all or part of the 
proposed utility facility is to be or may be located; 

(I) Department of Finance and Administration; 

(J) State Energy Conservation and Policy Office [abolished]; 

(K) Attorney General; and 

(L) Any other state agency or department designated by commis- 
sion regulation or order; and 

(8) Proof that a copy of the application has been made available for 
public inspection at all public libraries in each county in which the 
proposed utility facility is to be or may be located. 

(b) The copy of the application shall be accompanied by a notice 
specifying the date on or about which the application is to be filed and 
a notice that interventions or limited appearances must be filed with 
the commission within thirty (30) days after the date set forth as the 
date of filing, unless good cause is shown pursuant to § 23-18-517. 

(c)(1) Each application shall also be accompanied by proof that 
written notice specifying the date on or about which the application is 
to be filed and the date that interventions or limited appearances must 
be filed with the commission, unless good cause is shown pursuant to 
§ 23-18-517, has been sent by certified mail to each owner of real 
property on the proposed route selected by the utility on which a major 
utility facility is to be located or constructed. 

(2) The written notice required by this subsection shall be directed to 
the address of the owner of the real property as it appears on the 
records in the office of the county sheriff or county tax assessor for the 
mailing of statements for taxes as provided in § 26-35-705. 

(d)(1) Each application shall also be accompanied by proof that 
public notice of the application was given to persons residing in 
municipalities and counties entitled to receive notice under subsection 
(a) of this section by the publication in a newspaper having substantial 
circulation in the municipalities or counties of: 



173 LIGHT, HEAT, AND POWER UTILITIES 23-18-516 

(A) A summary of the application; 

(B) A statement of the date on or about which it is to be filed; and 

(C) A statement that intervention or limited appearances shall be 
filed with the commission within thirty (30) days after the date stated 
in the notice, unless good cause is shown under § 23-18-517. 
(2)(A) For purposes of this subsection, an environmental impact 
statement submitted as an exhibit to the application need not be 
summarized, but the published notice shall include a statement that 
the impact statements are on file at the office of the commission and 
available for public inspection or are available electronically on the 
commission's website. 

(B) The applicant shall also cause copies of the environmental 
impact statement to be furnished to at least one (1) of its local offices, 
if any, in the counties in which any portion of the major utility 
facilities are to be located, both as primarily or as alternatively 
proposed, to be there available for public inspection. 

(C) The published notice shall contain a statement of the location 
of the local offices described in subdivision (d)(2)(B) of this section and 
the times the impact statements will be available for public inspec- 
tion. 

(e) Inadvertent failure of service on or notice to any of the munici- 
palities, counties, governmental agencies, or persons identified in 
subsections (a) and (c) of this section may be cured pursuant to orders 
of the commission designed to afford such persons adequate notice to 
enable their effective participation in the proceedings. 

(f) In addition, after filing, the commission may require the applicant 
to serve notice of the application or copies thereof, or both, upon such 
other persons and file proof thereof, as the commission may deem 
appropriate. 

(g) Where any personal service or notice is required in this section, 
the service may be made by any officer authorized by law to serve 
process, by personal delivery, or by certified mail. 

History. Acts 1973, No. 164, § 5; 1977, added "or are available electronically on 

No. 866, § 1; A.S.A. 1947, § 73-276.4; the commission's website" at the end of 

Acts 1997, No. 540, § 88; 1999, No. 1164, (d)(2)(A); inserted "major utility" in 

§ 180; 1999, No. 1351, § 1; 2011, No. 910, (d)(2)(B); inserted "described in subdivi- 

§ 7. sion (d)(2)(B) of this section" in (d)(2)(C). 

Amendments. The 2011 amendment 

23-18-516. Hearing on application or amendment. 

(a)(1) Upon receipt of an application complying with §§ 23-18-511 — 
23-18-514, the Arkansas Public Service Commission shall promptly fix 
a date for the commencement of a public hearing thereon, which date 
shall be not fewer than forty (40) days nor more than one hundred 
eighty (180) days after the receipt of the application, and shall conclude 
the proceedings as expeditiously as practicable. 



23-18-517 PUBLIC UTILITIES AND REGULATED INDUSTRIES 174 

(2) The testimony presented at such hearing may be presented in 
writing or orally, provided that the commission may make rules 
designed to exclude repetitive, redundant, or irrelevant testimony. 

(b)(1) On an application for an amendment of a certificate, the 
commission shall hold a hearing in the same manner as a hearing is 
held on an application for a certificate if the commission affirmatively 
finds from the application, within thirty (30) days from the date of 
filing, that the proposed change in the facility would result in any 
material increase in any environmental or economic impact of the 
facility or that a substantial change will occur in the location of all or a 
portion of the facility other than as provided in the alternates set forth 
in the original application. 

(2) If the commission does not make such a finding by order within 
thirty (30) days after filing the application for amendment, the amend- 
ment shall become effective and the certificate shall be deemed to be 
amended as requested. 

History. Acts 1973, No. 164, § 6; 1977, Amendments. The 2007 amendment 
No. 866, § 1; A.S.A. 1947, § 73-276.5; substituted "one hundred eighty (180) 
Acts 2007, No. 658, § 4. days" for "ninety (90) days" in (a)(1). 

23-18-517. Parties to certification proceedings. 

(a) The parties to a certification proceeding shall include: 

(1) The applicant; 

(2) Each municipality, county, and government agency or depart- 
ment or other person entitled to receive service of a copy of the 
application under § 23- 18-5 13(a) if it has filed with the Arkansas 
Public Service Commission a notice of intervention as a party within 
thirty (30) days after service; or 

(3) A person residing in a municipality or county that is entitled to 
receive service of a copy of the application under § 23-18-513(a) or any 
domestic nonprofit corporation formed in whole or in part to promote 
conservation or natural beauty, to promote energy conservation, to 
protect the environment, personal health, or other biological values, to 
represent commercial and industrial groups, or to promote the orderly 
development of the areas in which the facility is to be located if the: 

(A) Person or organization has an interest that may be directly 
affected by the commission's action; 

(B) Interest is not adequately represented by other parties; and 

(C) Person or corporation has petitioned the commission for leave 
to intervene as a party within thirty (30) days after the date given in 
the public notice as the date of filing the application. 

(b)(1) Any person may make a limited appearance in the proceeding 
by filing a verified statement of position within thirty (30) days after the 
date given in the public notice as the date of filing the application. 

(2) No person making a limited appearance shall be a party or shall 
have the right to receive further notice or to cross-examine witnesses on 
any issue outside the scope of its statement of position. 



175 LIGHT, HEAT, AND POWER UTILITIES 23-18-519 

(3) The person making a limited appearance is subject to being called 
for cross-examination only on the subject matter of the statement of 
position by the applicant or other party. If the person fails to appear for 
cross-examination, if called, the statement of position may be stricken 
from the record at the discretion of the commission. 

(c) Every notice of intervention and petition to intervene shall be in 
writing and shall comply with all procedural rules of the commission, 
and shall contain clear and concise statements of the nature of the right 
or interest of the petitioner or intervenor in the proceeding, the specific 
objections of the petitioner or intervenor to the applicant's proposal, the 
grounds and issues of fact and law upon which petitioner or intervenor 
wishes to be heard, and any other reasonable information which may be 
required by rule or order of the commission. 

(d) For good cause shown, the commission may grant a petition for 
leave to intervene as a party or to make a limited appearance and to 
participate in subsequent phases of the proceeding, filed by any person 
who failed to file a timely notice of intervention or petition for leave to 
intervene, as the case may be, whose interests the commission finds are 
not otherwise adequately represented by another party and whose 
participation will not delay the proceedings, if the intervention or 
limited appearance is filed and served at least ten (10) days in advance 
of the date the hearing on the application is scheduled to commence. 

History. Acts 1973, No. 164, § 7; 1977, consolidated (a)(3) and (a)(4) and made 

No. 866, § 1; A.S.A. 1947, § 73-276.6; related changes. 

Acts 2009, No. 752, § 1; 2011, No. 910, The 2011 amendment substituted "§ 

§ 8. 23-18-513(a)" for "§ 23-18-513(a) and (b)" 

Amendments. The 2009 amendment in (a)(2) and (a)(3); and subdivided (a)(3). 

23-18-519. Decision of commission — Modifications of applica- 
tion. 

(a)(1) The Arkansas Public Service Commission shall render a deci- 
sion upon the record either granting or denying the application as filed 
or granting it upon such terms, conditions, or modifications of the 
location, financing, construction, operation, or maintenance of the 
major utility facility as the commission may deem appropriate. 

(2) The record may include by reference the findings of the commis- 
sion in an energy resource declaration-of-need proceeding that the 
utility needs additional energy supply resources or transmission re- 
sources. 

(b) The commission shall not grant a certificate for the location, 
financing, construction, operation, and maintenance of a major utility 
facility, either as proposed or as modified by the commission, unless it 
finds and determines: 

(1)(A) The basis of the need for the major utility facility. 

(B) In determining the basis of the need for the major utility 
facility, the commission may rely upon the commission's determina- 
tion in an energy resource declaration-of-need proceeding that the 



23-18-519 PUBLIC UTILITIES AND REGULATED INDUSTRIES 176 

utility needs additional energy supply resources or transmission 
resources; 

(2) That the major utility facility will serve the public interest, 
convenience, and necessity; 

(3) The nature of the probable environmental impact of the major 
utility facility; 

(4) That the major utility facility represents an acceptable adverse 
environmental impact, considering the state of available technology, 
the requirements of the customers of the applicant for utility service, 
the nature and economics of the proposal, any state or federal permit 
for the environmental impact, and the various alternatives, if any, and 
other pertinent considerations; 

(5) The nature of the probable economic impact of the major utility 
facility; 

(6) That the major utility facility financing method either as pro- 
posed or as modified by the commission represents an acceptable 
economic impact, considering economic conditions and the need for and 
cost of additional public utility services; 

(7) In the case of an electric transmission line, that the major utility 
facility is not inconsistent with plans of other electric systems serving 
the state that have been filed with the commission; 

(8) In the case of a gas transmission line, that the location of the line 
will not pose an undue hazard to persons or property along the area to 
be traversed by the line; 

(9) That the energy efficiency of the major utility facility has been 
given significant weight in the decision-making process; 

(10) That the location of the major utility facility as proposed 
conforms as closely as practicable to applicable state, regional, and local 
laws and regulations issued thereunder, except that the commission 
may refuse to apply all or part of any regional or local law or regulation 
if it finds that, as applied to the proposed major utility facility, the law 
or regulation is unreasonably restrictive in view of the existing tech- 
nology, factors of cost or economics, or the needs of consumers whether 
located inside or outside of the directly affected government subdivi- 
sions; 

(11) The interstate benefits expected to be achieved by the proposed 
construction or modification of an electric transmission line and asso- 
ciated facilities, as described in § 23-18-503(6)(B), that is located 
within a national interest electric transmission corridor; and 

(12) That any conditions attached to a certificate for the construction 
or modification of an electric transmission line and associated facilities, 
as described in § 23-18-503(6)(B), that is located within a national 
interest electric transmission corridor do not interfere with reduction of 
electric transmission congestion in interstate commerce or render the 
project economically infeasible. 

(c)(1) If the commission determines that the location or design of all 
or a part of the proposed facility should be modified, it may condition its 
certificate upon the modification, provided that the municipalities, 



177 LIGHT, HEAT, AND POWER UTILITIES 23-18-519 

counties, and persons residing therein affected by the modification shall 
have been given reasonable notice thereof, if the persons, municipali- 
ties, or counties have not previously been served with notice of the 
application. 

(2) If the commission requires in the case of a transmission line that 
a portion thereof shall be located underground in one (1) or more areas, 
the commission, after giving appropriate notice and an opportunity to 
be heard to affected ratepayers, shall have the power and authority to 
authorize the adjustment of rates and charges to customers within the 
areas where the underground portion of the transmission line is located 
in order to compensate for the additional costs, if any, of the under- 
ground construction. 

(d)(1) If the commission determines that financing of all or part of 
the proposed facility should be modified, it may condition its certificate 
upon the modification. 

(2) If at the time of filing the application or within sixty (60) days 
thereafter, the federal income tax laws and the state laws would permit 
the issuance of tax-exempt bonds to finance the construction of the 
proposed facility for the applicant and if the commission determines 
that financing the facility with such tax-exempt bonds would be in the 
best interests of the people of the state, the commission, after giving 
appropriate notice and an opportunity to be heard to the parties, shall 
have the power and authority to require by order or regulation that the 
facility be financed in such manner as may be provided elsewhere by 
law. 

(e) A copy of the decision and any order issued therewith shall be 
served upon each party within sixty (60) days after the conclusion of 
each hearing held under this subchapter. 

History. Acts 1973, No. 164, § 9; 1977, Acts 2003, No. 204, § 16, provided: 

No. 866, § 1; A.S.A. 1947, § 73-276.8; "Nothing in this act shall alter or diminish 

Acts 1999, No. 1556, § 10; 2001, No. 324, the Arkansas Public Service Commis- 

§§ 9, 10; 2003, No. 204, §§ 14, 15; 2007, sion's authority under otherwise appli- 

No. 658, § 5; 2009, No. 164, § 8; 2011, No. cable law." 

910, § 9. Amendments. The 2007 amendment 

Publisher's Notes. Acts 2001, No. 324, added (b)(ll) and (12), and made related 

§ 9, repealed the amendment by Acts changes. 

1999, No. 1556 that was to become effec- The 2009 amendment, in (b)(ll) and 

tive January 1, 2002. The 1999 amend- (12), substituted "described" for "denned," 

ment added exceptions in (b)(1), (b)(2), and inserted "(5)(B), that is." 

and (b)(8), and rewrote (b)(6). The 2011 amendment inserted (a)(2) 

Acts 2003, No. 204, §§ 14 and 15, re- and (b)(1)(B); inserted "major utility" pre- 
pealed the amendment by Acts 2001, No. ceding "facility" throughout the section; 
324, § 10, that was to become effective inserted "any state or federal permit for 
October 1, 2003. The 2001 amendment the environmental impact" in (b)(4); sub- 
added exceptions in (b)(1), (b)(2), and stituted "an electric transmission line and 
(b)(6), and rewrote (b)(9) to read: "In the associated facilities" for "a major electric 
case of a major utility facility as denned transmission facility" in (b)(ll) and 
by§ 23-18-503(5)(B), the effect of the pro- (b)(12); and substituted "§ 23-18- 
posed facility on competition for the sale of 503(6)(B)" for "§ 23-18-503(5)(B)" in 
electric generation in the state or regions." (b)(ll) and (b)(12). 



23-18-521 PUBLIC UTILITIES AND REGULATED INDUSTRIES 178 

CASE NOTES 

Proceedings. production processes, alternative fuels, or 
There was a lack of substantial evidence carbon dioxide emissions was lacking, and 
supporting the Arkansas Public Service evidence upon which the Commission 
Commission's determination that there could have made findings on the nature of 
was a basis of the need for an ultra- the probable economic impact of the facil- 
supercritical, pulverized coal-fired plant ity was lacking. Hempstead County Hunt- 
where the environmental impact state- ing Club, Inc. v. Ark. PSC, 2010 Ark. 221, 
ment failed to sufficiently address alter- — S.W.3d — (2010), rehearing denied, — 
natives in reasonable detail, evidence of Ark. — , — S.W.3d — , 2010 Ark. LEXIS 
alternative locations, alternative energy 375 (June 24, 2010). 

23-18-521. Issuance of certificate — Effect. 

(a) A certificate to construct and operate a major utility facility may 
be issued only under this subchapter. 

(b)(1) A certificate issued under this subchapter to an applicant is in 
lieu of and exempts the applicant from the requirements of obtaining a 
certificate of convenience and necessity under § 23-3-201 et seq. 

(2) A certificate issued under this subchapter entitles the applicant 
to a permit under § 23-3-501 et seq. without any further notice or 
hearing if the applicant has filed with the Arkansas Public Service 
Commission the consent or authorization required by § 23-3-504(7) and 
paid the damages stated in § 23-3-501 et seq. 

History. Acts 1973, No. 164, §§ 4, 9; Amendments. The 2011 amendment 
1977, No. 866, § 1; A.S.A. 1947, §§ 73- inserted "to construct and operate a major 
276.3, 73-276.8; Acts 2011, No. 910, § 10. utility facility" in (a); and subdivided (b). 

23-18-524. Rehearing — Judicial review. 

CASE NOTES 

Cited: Hempstead County Hunting 
Club, Inc. v. Ark. PSC, 2010 Ark. 221, — 
S.W.3d — (2010). 

23-18-525. Jurisdiction of courts. 

Except as stated in §§ 23-18-505, 23-18-506, and 23-18-524, a court 
of this state does not have jurisdiction to: 

(1) Hear or determine an issue, case, or controversy concerning a 
matter that was or could have been determined in a proceeding under 
this subchapter before the Arkansas Public Service Commission; or 

(2) Stop or delay the financing, construction, operation, or mainte- 
nance of a major utility facility except to enforce compliance with this 
subchapter or the provisions of a certificate issued under this subchap- 
ter after the exhaustion of administrative remedies before the commis- 
sion. 



179 LIGHT, HEAT, AND POWER UTILITIES 23-18-603 

History. Acts 1973, No. 164, § 12; subdivided the section; and added "after 

1977, No. 866, § 1; A.S.A. 1947, § 73- the exhaustion of administrative rem- 

276.11; Acts 2011, No. 910, § 11. edies before the commission" in (2). 

Amendments. The 2011 amendment 

23-18-530. Treatment of major utility facility generating plant. 

Except as provided under § 23-18-504(a), electric utility systems or 
facilities owned by a municipal electric consolidated authority created 
under the Arkansas Municipal Electric Utility Interlocal Cooperation 
Act of 2003, § 25-20-401 et seq., shall be subject to this subchapter. 

History. Acts 2003, No. 366, § 7; 2007, cility Environmental and Economic Pro- 
No. 475, § 1. tection Act, § 23-18-501 et seq., and ex- 
Amendments. The 2007 amendment cept with regard to major utility facilities 
deleted "Proposals of authority" from the consisting of generating plants as denned 
section heading; in (a), added "Except as m § 23-18-503(5)(A), subsections (b)-(f) of 
provided under § 23-18-504(a)" at the be- t h is section shall apply"; and deleted 
ginning and substituted "subject to this f ormer (b) through (f). 
subchapter" for "subject to the Utility Fa- 

23-18-531, 23-18-532. [Repealed.] 

Publisher's Notes. These sections, 23-18-531. Acts 2003, No. 366, § 7; 
concerning powers of an authority and 2005, No. 1962, § 105. 
regulation of an authority, were repealed 23-18-532. Acts 2003, No. 366, § 7 
by Acts 2007, No. 475, §§ 2, 3. The sec- 
tions were derived from the following 
sources: 

Subchapter 6 — Arkansas Renewable Energy Development Act of 

2001 

SECTION. 

23-18-603. Definitions. 
23-18-604. Authority of Arkansas Public 
Service Commission. 



Effective Dates. Acts 2007, No. 1026, 
§ 3: January 1, 2008. 



23-18-603. Definitions. 

As used in this subchapter: 

(1) "Commission" means the Arkansas Public Service Commission or 
other appropriate governing body for an electric utility as denned in 
subdivision (2) of this section; 

(2) "Electric utility" means a public or investor-owned utility, an 
electric cooperative, municipal utility, or any private power supplier or 



23-18-604 PUBLIC UTILITIES AND REGULATED INDUSTRIES 180 

marketer that is engaged in the business of supplying electric energy to 
the ultimate consumer or any customer classes within the state; 

(3) "Net excess generation" means the amount of electricity that a 
net-metering customer has fed back to the electric utility that exceeds 
the amount of electricity used by that customer during the applicable 
period; 

(4) "Net metering" means measuring the difference between electric- 
ity supplied by an electric utility and the electricity generated by a 
net-metering customer and fed back to the electric utility over the 
applicable billing period; 

(5) "Net-metering customer" means an owner of a net-metering 
facility; 

(6) "Net-metering facility" means a facility for the production of 
electrical energy that: 

(A) Uses solar, wind, hydroelectric, geothermal, or biomass re- 
sources to generate electricity, including, but not limited to, fuel cells 
and micro turbines that generate electricity if the fuel source is 
entirely derived from renewable resources; 

(B) Has a generating capacity of not more than twenty-five kilo- 
watts (25 kW) for residential use or three hundred kilowatts (300 kW) 
for any other use; 

(C) Is located in Arkansas; 

(D) Can operate in parallel with an electric utility's existing 
transmission and distribution facilities; and 

(E) Is intended primarily to offset part or all of the net-metering 
customer requirements for electricity; and 

(7) "Renewable energy credit" means the environmental, economic, 
and social attributes of a unit of electricity, such as a megawatt hour, 
generated from renewable fuels that can be sold or traded separately. 

History. Acts 2001, No. 1781, § 3; ingly; substituted "residential use or three 

2007, No. 1026, § 1. hundred kilowatts (300 kW) for any other 

Amendments. The 2007 amendment use" for "residential or one hundred kilo- 
substituted "As used in" for "For the pur- wa tts (100 kw) for commercial or agricul- 
poses of in the introductory language; tural use" in present (6)(B); and made 
inserted present (3) and (7), and redesig- related changes, 
nated the remaining subdivisions accord- 

23-18-604. Authority of Arkansas Public Service Commission. 

(a) An electric utility shall allow net-metering facilities to be inter- 
connected using a standard meter capable of registering the flow of 
electricity in two (2) directions. 

(b) Following notice and opportunity for public comment, the Arkan- 
sas Public Service Commission: 

(1) Shall establish appropriate rates, terms, and conditions for 
net-metering contracts, including a requirement that metering equip- 
ment be installed to both accurately measure the electricity supplied by 
the electric utility to each net-metering customer and also to accurately 



181 LIGHT, HEAT, AND POWER UTILITIES 23-18-701 

measure the electricity generated by each net-metering customer that 
is fed back to the electric utility over the applicable billing period; 

(2) May authorize an electric utility to assess a net-metering cus- 
tomer a greater fee or charge of any type, if the electric utility's direct 
costs of interconnection and administration of net metering outweigh 
the distribution system, environmental, and public policy benefits of 
allocating the costs among the electric utility's entire customer base; 

(3) Shall require electric utilities to credit a net-metering customer 
with any accumulated net excess generation in the next applicable 
billing period; 

(4) May expand the scope of net metering to include additional 
facilities that do not use a renewable energy resource for a fuel or may 
increase the peak limits for individual net-metering facilities, if so 
doing results in desirable distribution system, environmental, or public 
policy benefits; and 

(5) Shall provide that: 

(A) Any net excess generation credit remaining in a net-metering 
customer's account at the close of an annual billing cycle shall expire; 
and 

(B) Any renewable energy credit created as the result of electricity 
supplied by a net-metering customer is the property of the net- 
metering customer that generated the renewable credit. 

History. Acts 2001, No. 1781, § 4; cial electrical service, or both" in (a); in (b), 

2007, No. 1026, § 2. inserted present (3) and (5) and redesig- 

Amendments. The 2007 amendment nated former (3) as present (4); and made 

substituted "electric utility" for "electric related changes, 
utility that offers residential or commer- 

SUBCHAPTER 7 — ARKANSAS CLEAN ENERGY DEVELOPMENT ACT 

SECTION. SECTION. 

23-18-701. Legislative findings and decla- 23-18-703. Authority of Arkansas Public 
ration of purpose. Service Commission. 

23-18-702. Public utilities required to 
consider clean energy re- 
sources. 

23-18-701. Legislative findings and declaration of purpose. 

(a) The General Assembly finds that it is in the public interest to 
require all electric and natural gas public utilities subject to the 
jurisdiction of the Arkansas Public Service Commission to consider 
clean energy and the use of renewable energy resources as part of any 
resource plan or natural gas procurement plan. 

(b) The purpose of this subchapter is to ensure that all electric and 
natural gas public utilities subject to the jurisdiction of the Arkansas 
Public Service Commission will consider clean energy and the use of 
renewable resources as a part of any resource plan or natural gas 
procurement plan. 



23-18-702 PUBLIC UTILITIES AND REGULATED INDUSTRIES 182 

History. Acts 2007, No. 755, § 1; 2011, inserted "all" in (a); and inserted "and 
No. 735, § 1. natural gas" and "or natural gas procure- 

Amendments. The 2011 amendment ment plan" in (a) and (b). 

23-18-702. Public utilities required to consider clean energy 
resources. 

All electric and natural gas public utilities subject to the jurisdiction 
of the Arkansas Public Service Commission shall consider clean energy 
and the use of renewable resources as part of any resource plan or 
natural gas procurement plan. 

History. Acts 2007, No. 755, § 1; 2011, ning of the section head; and inserted 

No. 735, § 2. "and natural gas" and "or natural gas 

Amendments. The 2011 amendment procurement plan." 
inserted deleted "Electric" at the begin- 

23-18-703. Authority of Arkansas Public Service Commission. 

(a)(1) The Arkansas Public Service Commission may consider, pro- 
pose, develop, solicit, approve, implement, and monitor measures by 
electric and natural gas public utilities subject to its jurisdiction that 
cause the electric and natural gas public utilities to incur costs of 
service and investments that utilize, generate, or involve clean energy 
resources or renewable energy resources, or both. 

(2)(A) The commission may encourage or require electric and natural 
gas public utilities subject to its jurisdiction to consider clean energy 
or renewable energy resources, or both, as part of any resource plan 
or natural gas procurement plan. 

(B) If the commission approves the use of a clean energy resource 
or renewable energy resource in the form of a biofuel by an electric or 
natural gas public utility in a manner that displaces an energy 
equivalent of fossil fuels, the use of the clean energy resource or 
renewable energy resource may: 

(i) Be included as part of the electric or natural gas public utility's 
energy efficiency or conservation program under the Energy Conser- 
vation Endorsement Act of 1977, § 23-3-401 et seq.; and 

(ii) Apply toward the satisfaction of the electric or natural gas 
public utility's energy efficiency or conservation goals established by 
the commission or by law. 

(3) After proper notice and hearings, the commission may approve 
any clean energy resource or renewable energy resource that it deter- 
mines to be in the public interest. 

(4) If the commission determines that the cost of a clean energy 
resource or renewable energy resource is in the public interest, the 
commission may allow the affected electric or natural gas public utility 
to implement a temporary surcharge or utilize an existing commission- 
approved cost-recovery mechanism to recover the appropriate costs of 
such a resource until the implementation of new rate schedules in 
connection with the electric or natural gas public utility's next general 
rate filing in which such costs can be included in the electric or natural 



183 



LIGHT, HEAT, AND POWER UTILITIES 



23-18-802 



public utility's base rate schedules or for continued recovery 
through an approved appropriate tariff. 

(b) Nothing in this subchapter shall be construed as limiting or 
diminishing the authority of the commission to order, require, promote, 
or engage in any other energy resource practices or procedures. 



History. Acts 2007, No. 755, § 1; 2009, 
No. 164, § 9; 2011, No. 735, § 3. 

Amendments. The 2009 amendment 
substituted "electric public utilities" for 
"companies" in (a)(1); inserted "electric 
public" preceding "utility's" twice in (a)(4); 
and made minor stylistic changes. 

The 2011 amendment inserted "and 
natural gas" twice in (a)(1); inserted "or 



natural gas procurement plan" at the end 
of (a)(2)(A); inserted (a)(2)(B); in (a)(4), 
inserted "or natural gas" three times, in- 
serted "or utilize an existing commission- 
approved cost-recovery mechanism," sub- 
stituted "recover the appropriate costs" for 
"recover a portion of the costs," and added 
"or for continued recovery through an ap- 
proved appropriate tariff' at the end. 



Subchapter 8 — Broadband Over Power Lines Enabling Act 



SECTION. 

23-18-801. Title. 

23-18-802. Definitions. 

23-18-803. Permissible broadband sys- 
tems. 

23-18-804. Ownership and operation of 
broadband system. 



SECTION. 

23-18-805. Jurisdiction. 
23-18-806. Fees and charges. 
23-18-807. Reliability of electric systems 

maintained. 
23-18-808. Compliance with federal law. 



23-18-801. Title. 

This subchapter shall be known and may be cited as the "Broadband 
Over Power Lines Enabling Act". 

History. Acts 2007, No. 739, § 1. 

23-18-802. Definitions. 

As used in this subchapter and §§ 14-200-101, 18-15-503, 18-15-504, 
and 18-15-507: 

(1) "Broadband affiliate" or "affiliate" means an entity that is at least 
ten percent (10%) owned or controlled, directly or indirectly, by the 
electric utility formed to provide regulated or nonregulated broadband 
services; 

(2) "Broadband Internet service provider" means an entity that 
provides Internet broadband services to others on a wholesale basis or 
to end-use customers on a retail basis; 

(3) "Broadband operator" means an entity that owns or operates a 
broadband system on the electric power lines and related facilities of an 
electric utility; 

(4) "Broadband services" means the provision of regulated or non- 
regulated connectivity to a high-speed, high-capacity transmission 
medium that can carry signals from multiple independent network 
carriers over electric power lines and related facilities, whether above 
or below ground; 



23-18-803 PUBLIC UTILITIES AND REGULATED INDUSTRIES 184 

(5) "Broadband system" means the materials, equipment, and other 
facilities installed to facilitate the provision of broadband services; 

(6) "Electric delivery system" means the power lines and related 
facilities used by an electric utility to deliver electric energy; 

(7) "Electric utility" means a public utility as denned under § 23-1- 
101 that produces, generates, transmits, delivers, or furnishes electric- 
ity to or for the public for compensation; 

(8) "Nonregulated broadband services" means broadband services 
and technologies that are not provided for the operational performance 
of an electric utility, including without limitation, the provision of 
broadband services at wholesale or at retail; and 

(9) "Regulated broadband services" means broadband services and 
technologies that are used and useful for the operational performance 
and service reliability of an electric utility, including without limitation: 

(A) Automated meter reading; 

(B) Real-time system monitoring; 

(C) Remote service control; 

(D) Outage detection and restoration; 

(E) Predictive maintenance and diagnostics; and 

(F) Monitoring and enhancement of power quality. 

History. Acts 2007, No. 739, § 1. 

23-18-803. Permissible broadband systems. 

(a) An electric utility, an affiliate of an electric utility, or a person 
unaffiliated with an electric utility may own, construct, maintain, and 
operate a broadband system and provide broadband services on an 
electric utility's electric delivery system consistent with the require- 
ments of this subchapter. 

(b) This subchapter does not require an electric utility to implement 
a broadband system, provide broadband services, or allow others to 
install broadband facilities or use the electric utility's facilities to 
provide broadband services. 

(c) An electric utility, a broadband affiliate, or a broadband operator 
may elect to install and operate a broadband system on part or all of its 
electric delivery system in any part or all of its certificated service 
territory. 

History. Acts 2007, No. 739, § 1. 

23-18-804. Ownership and operation of broadband system. 

(a) An electric utility may: 

(1) Own or operate a broadband system on the electric utility's 
electric delivery system; 

(2) Allow an affiliate to own or operate a broadband system on the 
electric utility's electric delivery system; 

(3) Allow an unaffiliated entity to own or operate a broadband 
system on the electric utility's electric delivery system; 



185 LIGHT, HEAT, AND POWER UTILITIES 23-18-806 

(4) Provide broadband service, including without limitation, Internet 
service over a broadband system; and 

(5) Allow an affiliate or unaffiliated entity to provide broadband 
service, including without limitation, Internet service over a broadband 
system. 

(b) The electric utility shall determine which broadband Internet 
service providers may have access to broadband capacity on the 
broadband system. 

History. Acts 2007, No. 739, § 1. 

23-18-805. Jurisdiction. 

(a) Except as provided in this subchapter, neither the state nor any 
agency, instrumentality, or political subdivision of the state has juris- 
diction over: 

(1) An electric utility's ownership or operation of a broadband 
system; or 

(2) The provision of broadband services by the electric utility, a 
broadband affiliate, or a broadband operator. 

(b) Nothing in this subchapter shall interfere with the Arkansas 
Public Service Commission's authority to regulate public utilities 
pursuant to § 23-2-301 et seq. 

History. Acts 2007, No. 739, § 1. 

23-18-806. Fees and charges. 

(a) An electric utility may charge a broadband affiliate, an unaffili- 
ated broadband Internet service provider, or a broadband operator for 
the costs of the construction, installation, operation, and maintenance 
of the broadband system of the broadband affiliate, unaffiliated broad- 
band Internet service provider, or broadband operator. 

(b)(1) The costs incurred by an electric utility to own, operate, 
construct, and maintain a broadband system and to provide broadband 
services on its electric delivery system either by itself or through a 
broadband affiliate or broadband operator shall be allocated to the 
electric utility's accounts between regulated broadband services and 
nonregulated broadband services in accordance with applicable ac- 
counting principles and standards. 

(2)(A) Costs allocated to nonregulated broadband services: 

(i) Are outside the scope of an electric utility's providing of electric 

service to the public; 

(ii) Shall not be recoverable through its rates for the providing of 

electric service; and 

(iii) Are not subject to the jurisdiction of the state or any agency, 

instrumentality, or political subdivision of the state. 

(B) Revenues received by an electric utility attributable to the 

providing of nonregulated broadband services shall not be included 



23-18-807 PUBLIC UTILITIES AND REGULATED INDUSTRIES 186 

as revenues to the electric utility for purposes of establishing its rates 

for the providing of electric service. 

(c)(1) If all or part of a broadband system is installed on poles or 
other structures of a telephone utility and the broadband operator is 
unaffiliated with the electric utility that owns the electric delivery 
system, before installing equipment the unaffiliated broadband opera- 
tor shall enter into the customary agreement used by the telephone 
utility for access to the electrical delivery system and shall pay the 
telephone utility an annual fee consistent with the usual and custom- 
ary charges for access to the space occupied by that portion of the 
broadband system. 

(2) If all or part of a broadband system is installed on poles or other 
structures of a telephone utility and the broadband operator is an 
electric utility or broadband affiliate, the existing contract governing 
placement of the electric utility's attachments on poles or other struc- 
tures shall apply and no additional annual fee or approval shall be 
required if the broadband system is installed within the space allocated 
for electric service under the contract. 

(d) An electric utility shall not: 

(1) Charge an affiliate under this section an amount less than the 
electric utility would charge an unaffiliated entity for the same item or 
class of items; or 

(2) Pay an affiliate under this section an amount more than the 
affiliate would charge an unaffiliated entity for the same item or class 
of items. 

(e) A transaction between an electric utility and an affiliate and 
allocations between an electric utility account and a nonutility account 
with respect to broadband services and broadband systems are subject 
to this subchapter. 

History. Acts 2007, No. 739, § 1. 

23-18-807. Reliability of electric systems maintained. 

(a) An electric utility that installs or operates or permits the instal- 
lation or operation of a broadband system on its electric delivery system 
shall employ all reasonable measures to ensure that the operation of 
the broadband system does not interfere with or diminish the reliability 
of the electric utility's electric delivery system. 

(b) If a disruption in the provision of electric service occurs, the 
electric utility shall be governed by the terms and conditions of the 
retail electric delivery service tariff. 

(c) The provision of broadband services shall be at all times second- 
ary to the reliable provision of electric delivery services. 

History. Acts 2007, No. 739, § 1. 



187 



LIGHT, HEAT, AND POWER UTILITIES 



23-18-901 



23-18-808. Compliance with federal law. 

(a) A broadband operator shall comply with all applicable federal 
laws, including those protecting licensed spectrum users from interfer- 
ence by broadband systems. 

(b) To the extent required by Federal Communications Commission 
rules, the operator of a radio frequency device shall discontinue using a 
radio frequency device that causes harmful interference. 

History. Acts 2007, No. 739, §§ 1, 5. 



Subchapter 9 — Arkansas Electric Utility Storm Recovery 


Securitization Act 


SECTION. 


SECTION. 


23-18-901. Short title — Purpose. 


23-18-908. Choice of law — Conflicts. 


23-18-902. Definitions. 


23-18-909. Storm recovery bonds not pub- 


23-18-903. Financing orders. 


lic debt — Legal invest- 


23-18-904. Exceptions to commission ju- 


ments. 


risdiction. 


23-18-910. Tax treatment. 


23-18-905. Storm recovery property. 


23-18-911. State pledge. 


23-18-906. Sale. 


23-18-912. Assignee or financing party 


23-18-907. Security interests. 


not an electric utility. 



Effective Dates. Acts 2009, No. 729, 
§ 6: Apr. 1, 2009. Emergency clause pro- 
vided: "It is found and determined by the 
General Assembly that due to recent dev- 
astating ice storms in the state resulting 
in large storm recovery costs which could 
be securitized and financed under the pro- 
visions of this act, there is an immediate 
need to authorize the securitization fi- 
nancing for storm recovery costs, which 
may lower the financing costs or mitigate 
the impact on rates in comparison to tra- 
ditional utility financing or other tradi- 
tional utility recovery methods thereby 



benefitting customers. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health and 
safety shall become effective on the date of 
its approval by the Governor. If the bill is 
neither approved nor vetoed by the Gov- 
ernor, it shall become effective on the 
expiration of the period of time during 
which the Governor may veto the bill. If 
the bill is vetoed by the Governor and the 
veto is overridden, it shall become effec- 
tive on the date the last house overrides 
the veto." 



23-18-901. Short title — Purpose. 

(a) This subchapter shall be known and may be cited as the "Arkan- 
sas Electric Utility Storm Recovery Securitization Act". 

(b) The purpose of this subchapter is to enable Arkansas electric 
utilities, if authorized by a financing order issued by the Arkansas 
Public Service Commission, to use securitization financing for storm 
recovery costs, which may lower the financing costs or mitigate the 
impact on rates in comparison with traditional utility financing or other 
traditional utility recovery methods thereby benefitting customers. The 
storm recovery bonds will not be public debt. The proceeds of the storm 



23-18-901 PUBLIC UTILITIES AND REGULATED INDUSTRIES 188 

recovery bonds shall be used for the purposes of recovering storm 
recovery costs solely as set forth in a financing order issued by the 
commission to encourage and facilitate the rebuilding of utility infra- 
structure damaged by storms. Securitization financings for storm 
recovery costs are hereby recognized to be a valid public purpose. 
Federal tax laws and revenue procedures expressly require that certain 
state legislation be enacted in order for such transactions to receive 
certain federal tax benefits. The General Assembly finds a public need 
to promote such securitization financings by providing clear and 
exclusive methods to create, transfer, and encumber interests in storm 
recovery property as defined in this subchapter. This need can be met by 
providing in this subchapter such methods and by establishing that any 
conflict between the rules governing sales, assignments, or transfers of, 
or security interests or other encumbrances of any nature upon intan- 
gible personal property under other Arkansas laws and the methods 
provided in this subchapter, including without limitation with regard to 
creation, perfection, priority, or enforcement, shall be resolved in favor 
of the rules and methods established in this subchapter with regard to 
storm recovery property. 

(c) The intent of this subchapter is to provide benefits to Arkansas 
customers by allowing an Arkansas electric utility, if authorized by a 
financing order, to achieve certain tax and credit benefits of financing 
storm recovery costs on a similar basis with utilities in other states. 
This subchapter addresses certain property, security interests, and 
other matters to ensure that the financial, state income tax, state 
franchise tax, and federal income tax benefits of financing storm 
recovery costs through securitization are available in Arkansas. Fi- 
nancing orders issued under this subchapter shall not be considered as 
or deemed to be single issue ratemaking. The beneficial income tax and 
credit characteristics that may be achieved include the following: 

(1) Treating the storm recovery bonds as debt of the electric utility 
for state and federal income tax purposes; 

(2) Treating the storm recovery charges as gross income to the 
electric utility recognized under the utility's usual method of account- 
ing for income taxes, rather than recognizing gross income upon the 
receipt of the financing order or the receipt of cash in exchange for the 
sale of the storm recovery property or the issuance of the storm recovery 
bonds; 

(3) Avoiding the recognition of debt on the electric utility's balance 
sheet for certain credit and regulatory purposes by reason of the storm 
recovery bonds; 

(4) Treating the sale, assignment, or transfer of the storm recovery 
property by the electric utility as a true sale for state law and 
bankruptcy purposes; and 

(5) Avoiding any adverse impact of the financing on the electric 
utility's credit rating. 

History. Acts 2009, No. 729, § 1. 



189 LIGHT, HEAT, AND POWER UTILITIES 23-18-902 

23-18-902. Definitions. 

As used in this subchapter: 

(1) "Ancillary agreement" means any bond, insurance policy, letter of 
credit, reserve account, surety bond, swap arrangement, hedging ar- 
rangement, liquidity or credit support arrangement, or other financial 
arrangement entered into in connection with the issuance of storm 
recovery bonds; 

(2) "Assignee" means any legal or commercial entity, including but 
not limited to, a corporation, statutory trust, limited liability company, 
partnership, limited partnership, or other legally recognized entity to 
which an electric utility sells, assigns, or transfers, other than as 
security, all or a portion of its interest in or right to storm recovery 
property. The term also includes any legal or commercial entity to 
which an assignee sells, assigns, or transfers, other than as security, all 
or a portion of its interest in or right to storm recovery property; 

(3) "Commission" means the Arkansas Public Service Commission; 

(4) "Electric utility" means any person or any combination of per- 
sons, or lessees, trustees, and receivers of such person, now or hereafter 
owning or operating for compensation in this state equipment or 
facilities for producing, generating, transmitting, distributing, selling, 
or furnishing electricity to or for the public at retail in this state 
including an electric cooperative corporation generating or transmit- 
ting electricity; 

(5) "Financing costs" means: 

(A) Interest, discounts, and acquisition, defeasance, or redemption 
premiums that are payable on storm recovery bonds; 

(B) Any payment required under an ancillary agreement and any 
amount required to fund or replenish reserve or other accounts or 
subaccounts established under the terms of any indenture, ancillary 
agreement, or other financing documents pertaining to storm recov- 
ery bonds; 

(C) Any other cost related to issuing, supporting, repaying, and 
servicing storm recovery bonds, including, but not limited to, servic- 
ing fees, billing or other information system programming costs, 
accounting and auditing fees, trustee fees and expenses, legal fees 
and expenses, consulting fees and expenses, administrative fees and 
expenses, placement and underwriting fees and expenses, indepen- 
dent director and manager fees and expenses, capitalized interest, 
rating agency fees and expenses, stock exchange listing and compli- 
ance fees and expenses, and filing fees, including costs related to 
obtaining the financing order; 

(D) Any income taxes and license or other fees imposed on the 
revenues generated from the collection of storm recovery charges or 
otherwise resulting from the collection of storm recovery charges, in 
any such case whether paid, payable, or accrued; 

(E) Any gross receipts, franchise, use, and other taxes or similar 
charges including, but not limited to, regulatory assessment fees, in 



23-18-902 PUBLIC UTILITIES AND REGULATED INDUSTRIES 190 

any such case whether paid, payable, or accrued, imposed upon the 
electric utility, any assignee, or any financing party with respect to 
the receipt of storm recovery charges or the issuance of storm 
recovery bonds; 

(F) Any other costs, charges, and amounts approved by the com- 
mission in a financing order; 

(6) "Financing order" means an order of the commission adopted 
upon petition of an electric utility and pursuant to § 23-18-903 which, 
among other things, allows for: 

(A) The issuance of storm recovery bonds; 

(B) The imposition, collection, and periodic adjustments of storm 
recovery charges; 

(C) The creation of storm recovery property; or 

(D) The sale, assignment, or transfer of storm recovery property to 
an assignee; 

(7) "Financing party" means any holder of storm recovery bonds and 
any trustee, collateral agent, or other person acting for the benefit of 
holders of storm recovery bonds; 

(8) "Financing statement" has the same meaning as that provided in 
the Uniform Commercial Code — Secured Transactions, § 4-9-101 et 
seq.; 

(9) "Secured party" means a financing party in favor of which an 
electric utility or its direct or indirect successors or assignees creates a 
security interest in all or any portion of its interest in or right to storm 
recovery property A secured party may be granted a security interest in 
storm recovery property under this subchapter and a security interest 
in other collateral subject to the Uniform Commercial Code — Secured 
Transactions, § 4-9-101 et seq., in one (1) security agreement; 

(10) "Security interest" means a pledge, hypothecation, or other 
encumbrance of or other right over any portion of storm recovery 
property created by contract to secure the payment or performance of 
an obligation; 

(11) "Storm" means, individually or collectively, a named tropical 
storm, a named hurricane, a tornado, an ice or snow storm, a flood, an 
earthquake or other significant weather event or a natural disaster that 
occurred during the calendar year 2009 or thereafter; 

(12) "Storm recovery activity" means any activity or activities by or 
on behalf of an electric utility in connection with the restoration of 
service associated with electric power outages affecting customers of an 
electric utility as the result of a storm or storms, including, but not 
limited to, all internal and external labor costs and all costs related to 
mobilization, staging, and construction, reconstruction, replacement, or 
repair of electric generation, transmission, or distribution facilities; 

(13) "Storm recovery bonds" means bonds, debentures, notes, certifi- 
cates of beneficial interest, certificates of participation, certificates of 
ownership, or other evidences of indebtedness or ownership that are 
issued pursuant to or in connection with an indenture, contract, 
ancillary agreement, or other agreement of an electric utility or an 



191 LIGHT, HEAT, AND POWER UTILITIES 23-18-902 

assignee pursuant to a financing order, the proceeds of which are used 
directly or indirectly to provide, recover, finance, or refinance commis- 
sion-approved storm recovery costs, financing costs, and costs to replen- 
ish or fund a storm recovery reserve to such level as the commission 
may authorize in a financing order, and which are secured by or payable 
from storm recovery property. If certificates of beneficial interest, 
certificates of participation or ownership are issued, references in this 
subchapter to principal, interest, or premium shall be construed to refer 
to comparable amounts under those certificates; 

(14) "Storm recovery charges" means the amounts authorized by the 
commission to recover, finance, or refinance storm recovery costs, 
financing costs, and the costs to create, fund, or replenish a storm 
recovery reserve, including, but not limited to, through the issuance 
and repayment of storm recovery bonds. Such charges shall be imposed 
on all customer bills and collected by an electric utility or its successors 
or assignees, or a collection agent. Such charges shall be nonbypassable 
charges that are separate and apart from the electric utility's base rates 
and shall be paid by all existing and future customers receiving 
transmission or distribution service, or both, from the electric utility or 
its successors or assignees under commission-approved rate schedules 
as provided in the financing order. An individual customer's monthly 
storm recovery charges shall be based upon the customer's then current 
monthly billing determinants; 

(15) "Storm recovery costs" means, at the option and request of the 
electric utility and as approved by the commission pursuant to § 23- 
18-903 reasonable and necessary costs, including costs expensed, 
charged to self-insurance reserves, capitalized, or otherwise financed, 
that are incurred, including costs incurred prior to April 1, 2009, or 
expected to be incurred by an electric utility in undertaking a storm 
recovery activity. Such costs shall be net of applicable insurance 
proceeds and, where determined appropriate by the commission, shall 
include adjustments for normal capital replacement and operating 
costs, lost revenues, or other potential offsetting adjustments. Storm 
recovery costs shall include carrying costs, at simple interest which 
shall accrue at a rate equal to the electric public utility's last approved 
rate-base rate of return, from the date on which the storm recovery 
costs were incurred until the date that storm recovery bonds are issued 
or until storm recovery costs are otherwise recovered. Storm recovery 
costs shall also include the costs of retiring or purchasing any indebt- 
edness or equity relating to or associated with storm recovery activities, 
including accrued interest, premium and other fees, costs, and charges 
related thereto. Storm recovery costs shall also include the costs to 
create or fund any storm recovery reserves or to replenish any shortfall 
in any storm recovery reserves; 

(16) "Storm recovery property" means: 

(A) All rights and interests of an electric utility or the direct or 
indirect successors or assignees of the electric utility under a financ- 
ing order, including the right to impose, bill, collect, and receive storm 



23-18-903 PUBLIC UTILITIES AND REGULATED INDUSTRIES 192 

recovery charges authorized in the financing order and to obtain 
periodic adjustments to such charges as provided in the financing 
order; and 

(B) All revenues, collections, claims, rights to payments, pay- 
ments, money, or proceeds arising from the rights and interests 
specified in subdivision (16)(A) of this section, regardless of whether 
such revenues, collections, claims, rights to payment, payments, 
money, or proceeds are imposed, billed, received, collected, or main- 
tained together with or commingled with other revenues, collections, 
rights to payment, payments, money, or proceeds; 

(17) "Storm recovery reserve" means an electric utility's storm cost 
reserve account established pursuant to § 23-4-112; and 

(18) "Uniform Commercial Code — Secured Transactions" means 
§ 4-9-101 et seq. 

History. Acts 2009, No. 729, § 1. 

23-18-903. Financing orders. 

(a) An electric utility may petition the Arkansas Public Service 
Commission for a financing order. For each petition, the electric utility 
shall: 

(1) Describe the storm recovery activities that the electric utility has 
undertaken or proposes to undertake and describe the reasons for 
undertaking the activities; 

(2) Set forth the known storm recovery costs and estimate the costs 
of any storm recovery activities that are not completed or for which the 
costs are not yet known as identified and requested by the electric 
utility; 

(3) Set forth the level of the storm recovery reserve that the utility 
proposes to establish or replenish and has determined would be 
appropriate to recover through storm recovery bonds and is seeking to 
so recover and such level that the utility is funding or will seek to fund 
through other means, together with a description of the factors and 
calculations used in determining the amounts and methods of recovery; 

(4) Indicate whether the electric utility proposes to finance all or a 
portion of the storm recovery costs and storm recovery reserve using 
storm recovery bonds. If the electric utility proposes to finance a portion 
of such costs, the electric utility shall identify that portion in the 
petition; 

(5) Estimate the financing costs related to the storm recovery bonds; 

(6) Estimate the storm recovery charges necessary to pay in full as 
scheduled the principal of, premium, if any, and interest on the 
proposed storm recovery bonds and related financing costs until the 
legal final maturity date of such proposed storm recovery bonds; 

(7) Estimate any cost savings from or demonstrate how rate impacts 
to customers would be mitigated as a result of financing storm recovery 
costs with storm recovery bonds in comparison with traditional utility 
financing or other traditional utility recovery methods; 



193 LIGHT, HEAT, AND POWER UTILITIES 23-18-903 

(8) File with the petition direct testimony supporting the petition; 
and 

(9) Facilitate a timely audit of all capital costs included within the 
storm recovery costs proposed to be financed by storm recovery bonds. 

(b)(1)(A) Proceedings on a petition submitted pursuant to subsection 
(a) of this section shall begin with a petition by an electric utility and 
shall be disposed of in accordance with the commission's rules and 
regulations promulgated pursuant to the Arkansas Administrative 
Procedure Act, § 25-15-201 et seq., except that the provisions of this 
section, to the extent applicable, shall control. 

(B) Within 7 days after the filing of a petition, the commission 
shall publish a case schedule, which schedule shall place the matter 
before the commission on an agenda that will permit a commission 
decision no later than one hundred twenty (120) days after the date 
the petition is filed. 

(C) No later than one hundred thirty-five (135) days after the date 
the petition is filed, the commission shall issue a financing order or an 
order rejecting the petition. The commission shall issue a financing 
order authorizing financing of reasonable and prudent storm recov- 
ery costs, the storm recovery reserve amount determined appropriate 
by the commission, and financing costs if the commission finds that 
the issuance of the storm recovery bonds and the imposition of storm 
recovery charges authorized by the order are reasonably expected to 
result in lower overall costs or to mitigate rate impacts to customers 
as compared with traditional utility financing or other traditional 
utility recovery methods. Any determination of whether storm recov- 
ery costs are reasonable and prudent shall be made with reference to 
the general public interest in and the scope of effort required to 
provide the safe and expeditious restoration of electric service. 

(2) In a financing order issued to an electric utility, the commission 
shall: 

(A) Specify the amount of storm recovery costs and the level of 
storm recovery reserves, taking into consideration, to the extent the 
commission deems appropriate, any other methods used to recover 
these costs, and describe and estimate the amount of financing costs 
which may be recovered through storm recovery charges, and specify 
the period over which such costs may be recovered; 

(B) Determine that the proposed structuring, expected pricing, 
and financing costs of the storm recovery bonds are reasonably 
expected to result in lower overall costs or would mitigate rate 
impacts to customers as compared with traditional utility financing 
or other traditional utility recovery methods; 

(C) Provide that, for the period specified pursuant to subdivision 
(b)(2)(A) of this section, the imposition and collection of storm 
recovery charges authorized in the financing order shall be nonby- 
passable and paid by all customers receiving transmission or distri- 
bution service, or both, from an electric utility or its successors or 
assignees under commission-approved rate schedules as provided in 



23-18-903 PUBLIC UTILITIES AND REGULATED INDUSTRIES 194 

the financing order. An individual customer's monthly storm recovery 
charges shall be based upon the customer's then-current monthly 
billing determinants; 

(D) Determine what portion, if any, of the storm recovery reserves 
must be held in a funded reserve and any limitations on how the 
reserve may be held, accessed, or used; 

(E) Include a formula-based mechanism for making expeditious 
periodic adjustments in the storm recovery charges that customers 
are required to pay under the financing order and for making any 
adjustments that are necessary to correct for any projected overcol- 
lection or undercollection of the charges or to otherwise ensure the 
timely payment as scheduled of storm recovery bonds and financing 
costs and other required amounts and charges payable in connection 
with the storm recovery bonds; 

(F) Specify the storm recovery property that is or shall be created 
in favor of an electric utility or its successors or assignees and that 
shall be used to pay or secure storm recovery bonds and financing 
costs; 

(G) Specify the degree of flexibility to be afforded to the electric 
utility in establishing the terms and conditions of the storm recovery 
bonds, including, but not limited to, repayment schedules, interest 
rates, and other financing costs; 

(H) Provide the method by which storm recovery charges shall be 
allocated among the customer classes; 

(I) Provide that after the final terms of an issuance of storm 
recovery bonds have been established and prior to the issuance of 
storm recovery bonds, the electric utility shall determine the result- 
ing initial storm recovery charge in accordance with the financing 
order and such initial storm recovery charge shall be final and 
effective upon the issuance of such storm recovery bonds without 
further commission action; 

(J) Include any other conditions that the commission considers 
appropriate and that are not otherwise inconsistent with this section. 

(c) After the issuance of a financing order, the electric utility retains 
sole discretion regarding whether to cause the storm recovery bonds to 
be issued, including the right to defer or postpone such sale, assign- 
ment, transfer, or issuance, provided that the storm recovery bonds, 
other than refunding bonds, may not be issued later than two (2) years 
from the date the financing order becomes final and nonappealable, or 
such later date as provided in the financing order, and provided further, 
that nothing herein shall prevent the electric utility, prior to the end of 
such two-year period, from abandoning the issuance of storm recovery 
bonds under the financing order, if this is in the best interest of 
ratepayers, by filing with the commission a statement of abandonment 
and the reasons therefore. Nothing herein limited the rights of the 
electric utility to recover its storm recovery costs under normal rate- 
making should the storm recovery bonds not be issued. 

(d) At the request of an electric utility, the commission may com- 
mence a proceeding and issue a subsequent financing order that 



195 LIGHT, HEAT, AND POWER UTILITIES 23-18-903 

provides for the refinancing, retiring, or refunding of storm recovery 
bonds issued pursuant to the original financing order if the commission 
finds that the subsequent financing order satisfies all of the criteria 
specified in subsection (b) of this section. Effective on retirement of the 
refunded storm recovery bonds and the issuance of new storm recovery 
bonds, the commission may adjust the related storm recovery charges 
accordingly or establish substitute storm recovery charges. Any such 
financing order shall be issued within one hundred twenty (120) days of 
the application of an electric utility therefor. 

(e) All financing orders by the commission shall be operative and in 
full force and effect from the date of issuance by the commission. 

(f) An aggrieved party or intervenor may within fifteen (15) days 
after the financing order or a supplemental order made by the commis- 
sion becomes effective, or within fifteen (15) days from the date an 
application for rehearing is deemed to be denied as provided in 
§ 23-2-422, file in the Court of Appeals, a petition setting forth the 
particular cause of objection to the order complained of. Inasmuch as 
delay in the determination of the appeal of a financing order may delay 
the issuance of storm recovery bonds thereby diminishing savings to 
customers which might be achieved if such bonds were issued as 
contemplated by a financing order, all such cases shall be given 
precedence over all other civil cases in the court and shall be heard and 
determined as speedily as possible. 

(g) A financing order issued to an electric utility may provide that 
creation of the electric utility's storm recovery property pursuant to 
subdivision (b)(2)(F) of this section is conditioned upon, and shall be 
simultaneous with, the sale or other transfer of the storm recovery 
property to an assignee and the pledge of the storm recovery property 
to secure storm recovery bonds. 

(h) If the commission issues a financing order, the electric utility 
shall file with the commission at least annually a request for adminis- 
trative approval applying the formula-based true-up mechanism to 
make the adjustments described in subdivision (b)(2)(E) of this section. 
The review of such a request shall be limited to determining whether 
there is any mathematical error in the application of the formula-based 
mechanism relating to the appropriate amount of any projected over- 
collection or undercollection of storm recovery charges and the amount 
of an adjustment. Such adjustments shall ensure the recovery of 
revenues sufficient to provide for the payment of principal, interest, 
acquisition, defeasance, financing costs, or redemption premium and 
other fees, costs, and charges in respect of storm recovery bonds 
approved under the financing order. Within fifteen (15) days after 
receiving an electric utility's request pursuant to this subsection, the 
commission shall either administratively approve the request or inform 
the electric utility of any mathematical errors in its calculation. If the 
commission informs the utility of mathematical errors in its calcula- 
tion, the utility may correct its error and refile its request. The time 
frames previously described in this subsection shall apply to a refiled 
request. 



23-18-904 PUBLIC UTILITIES AND REGULATED INDUSTRIES 196 

(i) Subsequent to the earlier of the transfer of storm recovery 
property to an assignee or the issuance of storm recovery bonds 
authorized thereby, a financing order is irrevocable, and except as 
provided in subsections (d) and (h) of this section, the commission may 
not amend, modify, or terminate the financing order by any subsequent 
action or reduce, impair, postpone, terminate, or otherwise adjust storm 
recovery charges approved in the financing order. 

History. Acts 2009, No. 729, § 1. 

23-18-904. Exceptions to commission jurisdiction. 

(a) If the Arkansas Public Service Commission issues a financing 
order to an electric utility pursuant to this section, the commission may 
not, in exercising its powers and carrying out its duties regarding any 
matter within its authority pursuant to this chapter, consider the storm 
recovery bonds issued pursuant to the financing order to be the debt of 
the electric utility other than for federal and state income tax purposes, 
consider the storm recovery charges paid under the financing order to 
be the revenue of the electric utility for any purpose, or consider the 
storm recovery costs or financing costs specified in the financing order 
to be the costs of the electric utility, nor may the commission determine 
any action taken by an electric utility which is consistent with the 
financing order to be unjust or unreasonable. 

(b) The commission may not order or otherwise directly or indirectly 
require an electric utility to use storm recovery bonds to finance any 
project, addition, plant, facility, extension, capital improvement, equip- 
ment, or any other expenditure. The commission may not refuse to 
allow an electric utility to recover costs for storm recovery activities in 
an otherwise permissible and reasonable fashion, or refuse or condition 
authorization or approval of the issuance and sale by an electric utility 
of securities or the assumption by it of liabilities or obligations, solely 
because of the potential availability of storm recovery financing. 

History. Acts 2009, No. 729, § 1. 

23-18-905. Storm recovery property. 

(a) All storm recovery property that is specified in a financing order 
shall constitute an existing, present intangible property right or inter- 
est therein, notwithstanding that the imposition and collection of storm 
recovery charges depend on the electric utility to which the financing 
order is issued performing its servicing functions relating to the 
collection of storm recovery charges and on future electricity consump- 
tion. Such property shall exist whether or not the revenues or proceeds 
arising from the property have been billed, have accrued, or have been 
collected and notwithstanding the fact that the value or amount of the 
property is or may be dependent on the future provision of service to 
customers by the electric utility or its successors or assignees and the 
future consumption by customers of electricity. 



197 LIGHT, HEAT, AND POWER UTILITIES 23-18-905 

(b) Storm recovery property specified in a financing order shall 
continue to exist until the storm recovery bonds issued pursuant to the 
financing order are indefeasibly paid in full and all financing costs of 
the bonds have been paid in full. 

(c) All or any portion of storm recovery property specified in a 
financing order issued to an electric utility, if storm recovery bonds are 
to be issued, shall be sold, assigned, or transferred to a successor or an 
assignee, including an affiliate or affiliates of the electric utility created 
for the limited purpose of acquiring, owning, or administering storm 
recovery property or issuing storm recovery bonds under the financing 
order. All or any portion of storm recovery property may be encumbered 
by a security interest to secure storm recovery bonds issued pursuant to 
the financing order, amounts payable to financing parties and to 
counterparties under any ancillary agreements, and other financing 
costs. Each such sale, assignment, transfer, conveyance, or pledge made 
by or security interest granted by an electric utility or affiliate of an 
electric utility or assignee is considered to be a transaction in the 
ordinary course of business. 

(d) The description of storm recovery property being sold, assigned, 
or transferred to an assignee in any sale agreement, purchase agree- 
ment, or other transfer agreement, being encumbered, granted, or 
pledged to a secured party in any security agreement, pledge agree- 
ment, or other security document, or indicated in any financing state- 
ment is only sufficient if such description or indication refers to the 
specific financing order that created the storm recovery property and 
states that such agreement or financing statement covers all or part of 
such storm recovery property described in such financing order. A 
description of storm recovery property in a financing statement shall be 
sufficient if it refers to the financing order creating the storm recovery 
property. This subsection applies to all purported sales, assignments, or 
transfers of and all purported grants of liens or security interests in 
storm recovery property, regardless of whether the related sale agree- 
ment, purchase agreement, other transfer agreement, security agree- 
ment, pledge agreement, or other security document was entered into, 
or any financing statement was filed, before or after April 1, 2009. 

(e) If an electric utility defaults on any required payment of charges 
arising from storm recovery property specified in a financing order, the 
court specified in § 23-18-903(f) upon application by an interested 
party and without limiting any other remedies available to the applying 
party shall order the sequestration and payment of the revenues 
arising from the storm recovery property to the financing parties or 
their representatives. Any such order shall remain in full force and 
effect notwithstanding any reorganization, bankruptcy, or other insol- 
vency proceedings with respect to the electric utility or its successors or 
assigns. 

(f) The interest of a transferee, purchaser, acquirer, assignee, or 
secured party in storm recovery property specified in a financing order 
is not subject to setoff, counterclaim, surcharge, or defense by the 



23-18-906 PUBLIC UTILITIES AND REGULATED INDUSTRIES 198 

electric utility or any other person or in connection with the reorgani- 
zation, bankruptcy, or other insolvency of the electric utility, its succes- 
sors or assignees or any other entity. 

(g) Any successor to an electric utility, whether pursuant to any 
reorganization, bankruptcy, or other insolvency proceeding or whether 
pursuant to any merger or acquisition, sale, or other business combi- 
nation or transfer by operation of law, as a result of electric utility 
restructuring or otherwise, shall perform and satisfy all obligations of, 
and have the same rights under a financing order as the electric utility 
under the financing order in the same manner and to the same extent 
as the electric utility, including collecting and paying to the person 
entitled to receive them, the revenues, collections, payments, or pro- 
ceeds of the storm recovery property. 

(h) Storm recovery bonds shall be nonrecourse to the credit or any 
assets of the electric utility other than the storm recovery property as 
specified in the financing order and any rights under any ancillary 
agreement. 

History. Acts 2009, No. 729, § 1. 

23-18-906. Sale. 

The sale, assignment, or transfer of storm recovery property is 
governed by this section. All of the following apply to a sale, assign- 
ment, or transfer under this section: 

(1) The sale, conveyance, assignment, or other transfer of storm 
recovery property by an electric utility to an assignee that the parties 
have in the governing documentation expressly stated to be a sale or 
other absolute transfer is an absolute transfer and true sale of, and not 
a pledge of or security interest in, the transferor's right, title, and 
interest in, to and under the storm recovery property, other than for 
federal and state income tax purposes. For all purposes other than 
federal and state income tax purposes, the parties' characterization of 
a transaction as a sale of an interest in storm recovery property shall be 
conclusive that the transaction is a true sale and that ownership has 
passed to the party characterized as the purchaser, regardless of 
whether the purchaser has possession of any documents evidencing or 
pertaining to the interest. After such a transaction, the storm recovery 
property is not subject to any claims of the transferor or the transferor's 
creditors, other than creditors holding a prior security interest in the 
storm recovery property perfected under subdivision (4) of this section; 

(2) The characterization of the sale, conveyance, assignment, or 
other transfer as a true sale or other absolute transfer under subdivi- 
sion (1) of this section and the corresponding characterization of the 
assignee's property interest is not affected by: 

(A) Commingling of amounts arising with respect to the storm 
recovery property with other amounts; 

(B) The retention by the transferor of a partial or residual interest, 
including an equity interest or entitlement to any surplus, in the 



199 LIGHT, HEAT, AND POWER UTILITIES 23-18-906 

storm recovery property, whether direct or indirect, or whether 
subordinate or otherwise; 

(C) Any recourse that the assignee may have against the transf- 
eror, except that any such recourse shall not be created, contingent 
upon, or otherwise occurring or resulting from the inability or failure 
of one (1) or more of the transferor's customers to timely pay all or a 
portion of the storm recovery charge; 

(D) Any indemnifications, obligations, or repurchase rights made 
or provided by the transferor, except that such indemnity or repur- 
chase rights shall not be based solely upon the inability or failure of 
a transferor's customers to timely pay all or a portion of the storm 
recovery charge; 

(E) The transferor acting as the collector of the storm recovery 
charges or the existence of any contract that authorizes or requires 
the electric utility, to the extent that any interest in storm recovery 
property is sold or assigned, to contract with the assignee or any 
financing party that it will continue to operate its system to provide 
service to its customers, will collect amounts in respect of the storm 
recovery charges for the benefit and account of such assignee or 
financing party, and will account for and remit such amounts to or for 
the account of such assignee or financing party, including pursuant to 
a sequestration order authorized by this subchapter; 

(F) The contrary or other treatment of the sale, conveyance, 
assignment, or other transfer for tax, financial reporting, or other 
purposes; 

(G) The granting or providing to holders of the storm recovery 
bonds of a preferred right to the storm recovery property or credit 
enhancement by the electric utility or its affiliates with respect to the 
storm recovery bonds; 

(H) The status of the assignee as a direct or indirect wholly owned 
subsidiary or other affiliate of the electric utility. The separate 
identity of any assignee of storm recovery property which is a 
subsidiary or affiliate of the electric utility shall not be disregarded 
due to the fact that the assignee and the electric utility share any one 
(1) or more incidents of control, including common managers, officers, 
directors, members, accounting or administrative systems, consoli- 
dated tax returns, or office space, that the assignee may be a 
disregarded entity for tax purposes, that the utility caused the 
formation of the assignee, that a contract by the utility and the 
assignee described in subdivision (2)(E) of this section exists, that the 
assignee has no other business other than pertaining to the storm 
recovery property, that the capitalization of the assignee is limited to 
amounts required for compliance with certain applicable federal 
income tax laws and revenue procedures, or that other factors used in 
applying a single business enterprise test to juridical persons are 
present; 

(3) Any right that an electric utility has in the storm recovery 
property prior to its pledge, sale, or transfer or any other right of an 



23-18-906 PUBLIC UTILITIES AND REGULATED INDUSTRIES 200 

electric utility created under this subchapter or created in the financing 
order and assignable under this section or assignable pursuant to a 
financing order shall be property in the form of a contract right. 
Transfer of an interest in storm recovery property to an assignee is 
enforceable only upon the later of the issuance of a financing order, the 
execution and delivery of transfer documents to the assignee in connec- 
tion with the issuance of storm recovery bonds, and the receipt of value. 
An enforceable transfer of an interest in storm recovery property to an 
assignee other than a security interest shall be perfected against all 
third parties, including subsequent judicial or other lien creditors, 
when a notice of that transfer has been given by the filing of a financing 
statement in accordance with subdivision (4) of this section. The 
transfer shall be perfected against third parties as of the date of filing; 

(4) Except as otherwise provided in this subchapter, financing state- 
ments required to be filed under this section shall be filed, indexed, and 
maintained in the same manner and in the same system of records 
maintained for the filing of financing statements under the Uniform 
Commercial Code — Secured Transactions, § 4-9-101 et seq. The filing 
of such a financing statement with the Secretary of State shall be the 
only method of perfecting a sale, assignment, or transfer of storm 
recovery property. The sale, assignment, or transfer of an interest in 
storm recovery property perfected by filing a financing statement is 
effective against the customers owing payment of the storm recovery 
charges, creditors of the transferor, subsequent transferees, and all 
other third persons notwithstanding the absence of actual knowledge of 
or notice to the customers of the sale, assignment, or transfer. No 
continuation statement need be filed to maintain such perfection; 

(5) The priority of the conflicting ownership interests of assignees in 
the same interest or rights in any storm recovery property is deter- 
mined as follows: 

(A) Conflicting perfected interests or rights of assignees rank 
according to priority in time of perfection; 

(B) A perfected interest or right of an assignee has priority over a 
conflicting unperfected interest or right of an assignee; and 

(C) A perfected interest or right of an assignee has priority over a 
person who becomes a lien creditor after the perfection of such 
assignee's interest or right; and 

(6) The priority of a sale, assignment, or transfer perfected under 
this section is not impaired by any later modification of the financing 
order or storm recovery property or by the commingling of funds arising 
from storm recovery property with other funds. Any other security 
interest that may apply to those funds, other than a security interest 
perfected under § 23-18-907 shall be terminated when those funds are 
transferred to a segregated account for the assignee or a financing 
party. If storm recovery property has been transferred to an assignee or 
financing party, any proceeds of that property shall be held for and 
delivered to the assignee or financing party by any collector as a 
fiduciary. 



201 LIGHT, HEAT, AND POWER UTILITIES 23-18-907 

History. Acts 2009, No. 729, § 1. 

23-18-907. Security interests. 

(a) The Uniform Commercial Code — Secured Transactions, § 4-9- 
101 et seq., does not apply to storm recovery property or any right, title, 
or interest of a utility, assignee, or financing party therein except to the 
extent specified in this subchapter. In addition, such right, title, or 
interest pertaining to a financing order including, but not limited to, the 
associated storm recovery property including any revenues, collections, 
claims, rights to payment, payments, money, or proceeds of or arising 
from storm recovery charges pursuant to such order, shall not be 
deemed proceeds of any right or interest other than of the financing 
order and the storm recovery property arising from the financing order. 
All revenues and collections resulting from storm recovery property 
shall constitute proceeds only of the storm recovery property arising 
from the financing order. 

(b) Except to the extent provided in this subchapter with respect to 
filings of financing statements or control of deposit accounts or invest- 
ment property as original collateral, the creation, attachment, grant- 
ing, perfection, and priority of security interests in storm recovery 
property to secure storm recovery bonds is governed solely by this 
subchapter and not by the Uniform Commercial Code — Secured 
Transactions, § 4-9-101 et seq. 

(c)(1) A security interest in storm recovery property is valid and 
enforceable against the electric utility and its successor or an assignee 
and third parties and attaches to storm recovery property only after all 
of the following conditions are met: 

(A) The issuance of a financing order; 

(B) The execution and delivery of a security agreement, indenture, 
or other agreement with a financing party relating to the granting of 
a security interest in connection with the issuance of storm recovery 
bonds; and 

(C) The receipt of value for the storm recovery bonds. 

(2) A security interest attaches to storm recovery property when all 
of the foregoing conditions have been met, unless the security agree- 
ment expressly postpones the time of attachment. 

(d) A security interest in storm recovery property is perfected when 
it has attached and when the applicable financing statement describing 
the storm recovery property as provided in § 23-18-905(d) has been 
filed with the Secretary of State. The interest of a secured party is not 
perfected unless a financing statement sufficient under this subchapter 
and otherwise in accordance with the Uniform Commercial Code — 
Secured Transactions, § 4-9-101 et seq., is filed, and after perfection the 
secured party's interest continues in the storm recovery property and 
all proceeds of such storm recovery property, whether or not billed, 
accrued, or collected, and whether or not deposited into a deposit 
account and however evidenced; provided however that a security 
interest granted by the issuer of and securing storm recovery bonds 



23-18-907 PUBLIC UTILITIES AND REGULATED INDUSTRIES 202 

held by a secured party having control of a segregated deposit account 
or securities account as original collateral into which revenues, collec- 
tions, or proceeds of storm recovery property are deposited or credited 
may be perfected by control as provided in subsection (e) of this section. 
A security interest in proceeds of storm recovery property is a perfected 
security interest if the security interest in the storm recovery property 
was perfected under this subchapter. Except as otherwise provided in 
this subchapter, financing statements required to be filed pursuant to 
this section shall be filed, indexed, and maintained in the same manner 
and in the same system of records maintained for the filing of financing 
statements under the Uniform Commercial Code — Secured Transac- 
tions, § 4-9-101 et seq. The filing of such a financing statement shall be 
the only method of perfecting a lien or security interest on storm 
recovery property except as provided in this subsection. No continua- 
tion statement need be filed to maintain such perfection. 

(e) A perfected security interest in storm recovery property and all 
proceeds of such storm recovery property, whether or not billed, 
accrued, or collected, and whether or not deposited into a deposit 
account and however evidenced, shall have priority over a conflicting 
lien of any nature in the same collateral property, except a security 
interest is subordinate to the rights of a person that becomes a lien 
creditor before the perfection of such security interest. A security 
interest in storm recovery property which qualifies for priority over a 
conflicting security interest or lien also has priority over the conflicting 
security interest or lien in proceeds of the storm recovery property. The 
relative priority of a perfected security interest of a secured party is not 
adversely affected by any lien or security interest in a deposit account 
of the electric utility that is a collector and into which the revenues are 
deposited. The priority of a security interest perfected under this 
section is not defeated or impaired by any later modification of the 
financing order or storm recovery property or by the commingling of 
funds arising from storm recovery property with other funds. Any other 
security interest, other than a prior security interest perfected under 
this subchapter, that may apply to those funds shall be terminated as to 
all funds transferred to a segregated account for the benefit of an 
assignee or a financing party or to an assignee or financing party 
directly. The perfection by control, the effect of perfection by control, 
and the priority of a security interest granted by the issuer of and 
securing storm recovery bonds held by a secured party having control of 
a segregated deposit account or securities account as original collateral 
into which revenues, collections, or proceeds of storm recovery property 
are deposited or credited shall be governed by the Uniform Commercial 
Code — Secured Transactions, § 4-9-101 et seq., including the choice of 
law rules in §§ 4-9-301 — 4-9-307. 

(f) If a default or termination occurs under the terms of the storm 
recovery bonds, the secured party may foreclose on or otherwise enforce 
the security interest in any storm recovery property as if it were a 
secured party under the Uniform Commercial Code — Secured Trans- 



203 LIGHT, HEAT, AND POWER UTILITIES 23-18-907 

actions, § 4-9-101 et seq. A secured party holding a security interest in 
storm recovery property shall be entitled to exercise all of the same 
rights and remedies as are available to a secured party under the 
Uniform Commercial Code — Secured Transactions, § 4-9-101 et seq., 
to the same extent as if those rights and remedies were set forth in this 
subchapter. A court may order that amounts arising from storm 
recovery property be transferred to a separate account of the secured 
party for the financing parties' benefit, to which their security interest 
shall apply. On application by or on behalf of a secured party to the 
court of this state specified in subsection (f) of this section, such court 
shall order the sequestration and payment to the financing parties of 
revenues arising from the storm recovery property. 

(g) A security interest created under this subchapter may provide for 
a security interest in after-acquired collateral. A security interest 
granted under this subchapter is not invalid or fraudulent against 
creditors solely because the grantor or the electric utility as collector or 
servicer has the right or ability to commingle the collateral or proceeds, 
or collect, compromise, enforce, and otherwise deal with collateral. 

(h) Any action arising under the provisions of this subchapter to 
enforce a security interest in any security interest governed by this 
subchapter or in any storm recovery property, or which otherwise 
asserts an interest in, or a right in, to, or against any storm recovery 
property, wherever located or deemed located, shall be brought in the 
Pulaski County Circuit Court. 

(i) The priority of the conflicting interests of secured parties in the 
same interest or rights in any storm recovery property is determined as 
follows: 

(1) Conflicting perfected interests or rights of secured parties rank 
according to priority in time of perfection. Priority dates from the time 
a filing covering the interest or right is made in accordance with this 
section and the Uniform Commercial Code — Secured Transactions, 
§ 4-9-101 et seq.; 

(2) A perfected interest or right of a secured party has priority over 
a conflicting unperfected interest or right of an assignee; and 

(3) A perfected interest or right of a secured party has priority over 
a person who becomes a lien creditor after the perfection of such 
secured party's interest or right. 

(j) The priority of a lien and security interest in storm recovery 
property perfected under this section is not impaired by any later 
modification of the financing order or storm recovery property or by the 
commingling of funds arising from storm recovery property with other 
funds. Any other security interest that may apply to the storm recovery 
property shall be terminated when those funds are transferred to a 
segregated account for the assignee or a financing party. If storm 
recovery property has been transferred to an assignee or financing 
party, any proceeds of that storm recovery property shall be held in 
trust for the assignee or financing party. 



23-18-908 PUBLIC UTILITIES AND REGULATED INDUSTRIES 204 

History. Acts 2009, No. 729, § 1. 

23-18-908. Choice of law — Conflicts. 

(a) The law governing the validity, enforceability, attachment, per- 
fection, priority, exercise of remedies, and venue with respect to the 
sale, assignment, or transfer of an interest or right or the creation of a 
security interest in any storm recovery property shall be exclusively the 
laws of this state, without applying this state's law on conflicts of laws 
and notwithstanding any contrary contractual provision. The validity, 
enforceability, attachment, perfection, priority, and exercise of remedies 
with respect to the sale, assignment, or transfer of an interest or right 
or the creation of a security interest in any storm recovery property 
shall be governed by this subchapter, and solely to the extent not 
addressed by this subchapter, by the Uniform Commercial Code — 
Secured Transactions, § 4-9-101 et seq., and other laws of this state. 

(b) In the event of conflict between this subchapter and any other law 
regarding the attachment, creation, perfection, the effect of perfection, 
or priority of, and sale, assignment, or transfer of, or security interest 
in, storm recovery property, or the exercise of remedies with respect 
thereto, this subchapter shall govern to the extent of the conflict. 

History. Acts 2009, No. 729, § 1. 

23-18-909. Storm recovery bonds not public debt — Legal in- 
vestments. 

(a) Storm recovery bonds are not a debt or a general obligation of the 
state or any of its political subdivisions, agencies, or instrumentalities 
and are not a charge on their full faith and credit. An issue of storm 
recovery bonds does not, directly or indirectly or contingently, obligate 
the state or any agency, political subdivision, or instrumentality of the 
state to levy any tax or make any appropriation for payment of the 
bonds, other than for paying storm recovery charges in their capacity as 
consumers of electricity. All storm recovery bonds authorized by a 
financing order by the Arkansas Public Service Commission must 
contain on the face thereof a statement to the following effect: 
"Neither the full faith and credit nor the taxing power of the State of 
Arkansas is pledged to the payment of the principal of, or interest on, 
this bond." 

(b) Storm recovery bonds shall be legal investments for all govern- 
mental units, financial institutions, insurance companies, fiduciaries, 
and other persons that require statutory authority regarding legal 
investment. 

History. Acts 2009, No. 729, § 1. 



205 LIGHT, HEAT, AND POWER UTILITIES 23-18-911 

23-18-910. Tax treatment. 

The Arkansas state income tax treatment of the following events will 
conform to the federal income tax treatment of such events: 

(1) The electric utility's receipt of a financing order that creates 
storm recovery property for the benefit of the electric utility; 

(2) The electric utility's receipt of cash or other valuable consider- 
ation in exchange for its transfer of the storm recovery property to an 
affiliate which is wholly owned, directly or indirectly, by the electric 
utility; and 

(3) The electric utility's receipt of cash or other valuable consider- 
ation in exchange for storm recovery bonds issued by the financing 
party. 

History. Acts 2009, No. 729, § 1. 

23-18-911. State pledge. 

(a) For purposes of this subsection, the term "bondholder" means a 
person who holds, owns, or is the beneficial holder or owner of a storm 
recovery bond. 

(b) The state and its agencies, including the Arkansas Public Service 
Commission, pledge to and agree with bondholders, the owners of the 
storm recovery property, and other financing parties that the state will 
not: 

(1) Alter the provisions of this section which make the storm recov- 
ery charges imposed by a financing order irrevocable, binding, and 
nonbypassable charges; 

(2) Take or permit any action that impairs or would impair the value 
of storm recovery property; or 

(3) Except as allowed under this section, reduce, alter, or impair 
storm recovery charges that are to be imposed, collected, and remitted 
for the benefit of the bondholders and other financing parties until any 
and all principal, interest, premium, financing costs and other fees, 
expenses, or charges incurred, and any contracts to be performed in 
connection with the related storm recovery bonds have been paid and 
performed in full. 

Nothing in this paragraph shall preclude limitation or alteration if full 
compensation is made by law for the full protection of the storm 
recovery charges collected pursuant to a financing order and of the 
holders of storm recovery bonds and any assignee or financing party 
entering into a contract with the electric utility. 

(c) Any person or entity that issues storm recovery bonds may 
include the pledge specified in subsection (b) of this section in the bonds 
and related documentation. 

History. Acts 2009, No. 729, § 1. 



23-18-912 PUBLIC UTILITIES AND REGULATED INDUSTRIES 



206 



23-18-912. Assignee or financing party not an electric utility. 

An assignee or financing party shall not be considered an electric 
utility or person providing electric service by virtue of engaging in the 
transactions described in this subchapter. 

History. Acts 2009, No. 729, § 1. 

CHAPTER 19 
ELECTRIC CONSUMER CHOICE ACT OF 1999 

SECTION. 

23-19-101 — 23-19-616. [Repealed.] 



Publisher's Notes. Acts 2003, No. 204, 
§ 16, provided: "Nothing in this act shall 
alter or diminish the Arkansas Public Ser- 
vice Commission's authority under other- 
wise applicable law." 

Effective Dates. Acts 2003, No. 204, 
§ 19: Feb. 21, 2003. Emergency clause 
provided: "It is found and determined by 
the Eighty-fourth General Assembly that 
certain provisions of the Electric Con- 
sumer Choice Act of 1999, as amended by 
Act 324 of 2001, for the implementation of 
retail electric competition may take effect 
prior to ninety-one (91) days after the 
adjournment of this session; that this act 
is intended to prevent such implementa- 
tion; and that unless this emergency 
clause is adopted, this act may not go into 
effect until further steps have been taken 
toward retail electric competition, which 
the General Assembly has found not to be 
in the public interest. The General Assem- 
bly further finds that uncertainty sur- 



rounding the implementation of the Elec- 
tric Consumer Choice Act during the 
ninety (90) days following the adjourn- 
ment of this session and uncertainty re- 
garding the recovery of reasonable gen- 
eration costs, could discourage electric 
utilities from acquiring additional genera- 
tion resources; that retail electric custom- 
ers will require such resources; and that 
this act, in Section 11 and elsewhere, 
provides procedures to facilitate the ac- 
quisition of these resources. Therefore, an 
emergency is declared to exist and this act 
being immediately necessary for the pres- 
ervation of the public peace, health, and 
safety shall become effective on: (1) The 
date of its approval by the Governor; (2) If 
the bill is neither approved nor vetoed by 
the Governor, the expiration of the period 
of time during which the Governor may 
veto the bill; or (3) If the bill is vetoed by 
the Governor and the veto is overridden, 
the date the last house overrides the veto." 



23-19-101 — 23-19-616. [Repealed.] 



Publishers Notes. This chapter was 
repealed by Acts 2003, No. 204, § 18. The 
chapter was derived from the following 
sources: 

23-19-101. Acts 1999, No. 1556, § 1; 
2001, No. 324, § 11. 

23-19-102. Acts 1999, No. 1556, § 1. 

23-19-103. Acts 1999, No. 1556, § 1; 
2001, No. 324, § 12. 

23-19-104. Acts 1999, No. 1556, § 1. 

23-19-105. Acts 1999, No. 1556, § 1. 



23-19-106. Acts 1999, No. 1556, § 
23-19-107. Acts 1999, No. 1556, 

2001, No. 324, §§ 13, 14. 
23-19-108. Acts 1999, No. 1556, § 
23-19-109. Acts 1999, No. 1556, § 
23-19-201. Acts 1999, No. 1556, § 
23-19-202. Acts 1999, No. 1556, § 
23-19-203. Acts 1999, No. 1556, § 
23-19-204. Acts 1999, No. 1556, § 
23-19-205. Acts 1999, No. 1556, 

2001, No. 324, § 15. 



1. 
§ i; 

1. 

20. 

1. 

1. 

1. 

1. 

§ i; 



207 ELECTRIC CONSUMER CHOICE ACT OF 1999 23-19-616 

23-19-301. Acts 1999, No. 1556, § 1; 23-19-604. Acts 1999, No. 1556, § 1 
2001, No. 324, § 16. 23-19-605. Acts 1999, No. 1556, § 1 

23-19-302. Acts 1999, No. 1556, § 1. 23-19-606. Acts 1999, No. 1556, § 1 

23-19-303. Acts 1999, No. 1556, § 1. 23-19-607. Acts 1999, No. 1556, § 1 

23-19-304. Acts 1999, No. 1556, § 1. 23-19-608. Acts 1999, No. 1556, § 1 

23-19-401. Acts 1999, No. 1556, § 1. 23-19-609. Acts 1999, No. 1556, § 1 

23-19-402. Acts 1999, No. 1556, § 1; 23-19-610. Acts 1999, No. 1556, § 1 
2001, No. 324, § 17. 23-19-611. Acts 1999, No. 1556, § 1 

23-19-403. Acts 1999, No. 1556, § 1. 23-19-612. Acts 1999, No. 1556, § 1 

23-19-404. Acts 1999, No. 1556, § 1; 23-19-613. Acts 1999, No. 1556, § 1 
2001, No. 324, §§ 18, 19. 23-19-614. Acts 1999, No. 1556, § 1 

23-19-501. Acts 1999, No. 1556, § 1. 23-19-615. Acts 1999, No. 1556, § 1 

23-19-502. Acts 1999, No. 1556, § 1. 23-19-616. Acts 1999, No. 1556, § 1 

23-19-601. Acts 1999, No. 1556, § 1. This note is being set out to reflect a 

23-19-602. Acts 1999, No. 1556, § 1. correction of the repealing act informa- 

23-19-603. Acts 1999, No. 1556, § 1. tion. 




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